– Thank you everyone for coming out today. Welcome to the Latham and Watkins forum, and thank you to the Reiss Center on Law and Security for sponsoring this event. I am Lisa Monaco. I am distinguished senior fellow at the Reiss Center on Law and Security, and a professor here at the law school. Special welcome to some of my students that I see in the in the audience. Thanks for coming out, for what I think is a really important event and one NYU and the law school, and the Reiss Center is uniquely situated to host. I’m going to introduce our panelists in a second, and you will be blown away as I was by the breadth of the experience and expertise that we’ve got on the stage this afternoon and notably that is really reflects interdisciplinary expertise. Right. We’ve got lawyers, we’ve got doctors, we’ve got journalists. So it’s really an impressive array and I think something that NYU the law school, Reiss Center is really, really proud to be able to bring to you. So without further ado, I want to introduce our panelist.

We’re gonna have a discussion this afternoon on the Coronavirus, legal issues, policy issues, international law, and governance questions, and I’m really looking forward to the discussion. So let me begin by introducing our panelists. I am going to start at the far end. We have Laurie Garrett, who is here with us. She’s a former senior fellow at the council up for global health, at the Council on Foreign Relations, here in New York. She is a Pulitzer Prize winning science journalist. The best-selling author of books very relevant to this discussion today. The coming plague, Newly emerging diseases in a world out of balance, was I think her first book, if I’m right about that? – Yes – And betrayal of trust the collapse of global public health. I would note these titles, more than 10 years old, maybe, almost? But yet, still incredibly relevant on point, and obviously quite prescient.

Laurie has been at the forefront for years of some of the most vexing global public health challenges, and sounding the alarm on the danger of emerging infectious disease. She’s been recognized in journalism, academia and the public health community, and she was gonna bring today I think a rare perspective as this a science journalist, and as I said somebody’s been on the front lines of very significant worldwide epidemics, from SARS, to MRS, Ebola, and HIV. Next to Laurie is Dr. Alexandra Phelan. She’s a member of the Center for Global Health science and security, and an instructor in the Department of Microbiology and immunology at Georgetown in Washington DC, and a professor in global and public health law and ethics at Georgetown Law Center. We won’t hold it against you that it’s a different Law School Alexandra. Dr. Phelan works on legal and policy issues related to infectious diseases. With a particular focus on emerging and re-emerging infectious disease, outbreaks, and international law. She as I’ve as you could tell from her appointment, she’s got degrees in both biomedical science, and law, and focuses on global governance of infectious diseases.

Next to Dr. Phelan, is Dr. Shitong Qiao, who is visiting us here at the law school this semester from the university of Hong Kong. Where as an assistant professor of law at the University of Hong Kong, He’s an expert on property and urban law, with a focus on comparative law in China, Dr. Qiao graduated from Wuhan University which will become very relevant in our discussion this afternoon.

Is also a graduate of Peking University, and Yale University, where he received an LLM. Again, not holding it against you. (laughing) He has practiced in the courts in Wuhan, and clerked in the Hubei Province High People’s Court. So we are we are bringing you a real on the ground perspective. And finally directly next to me. Dr.

Howard Zucker. Dr. Zucker is the commissioner of health for the state of New York. That means he is the state’s chief physician. He leads initiatives in throughout the state to combat such important issues. as the opioids crisis, to strengthen environmental health, and the AIDS epidemic in New York. He has been many years at the New York State Department of Health, and has has helped establish a network of hospitals equipped to treat Ebola. Something that we cross paths on when I served as the president homeland security adviser during the Ebola epidemic in 2014 and 2015 and has implemented programs in New York to treat the threat of Zika and spearheaded issues like combating antimicrobial resistance and measles.

He oversees the entire public health, and healthcare workforce here in public health care facilities in New York. He is a has received his MD from George Washington School of Medicine in DC and a JD and an LLM from two other New York law schools. [Laughter] – Fordham, Columbia. And has bio security law at Georgetown. They note to the Dean that we need to up our global public health expertise here. He has a public policy background as well as serving as a White House Fellow, and for then Secretary of Health and Human Services, Tommy Thompson He rose to become a Deputy Assistant Secretary of Health, in the Department of Health and Human Services, overseeing the medical reserve core. That’s today a Medical Reserve Core that’s run by the US Surgeon General, and he’s worked in pandemic preparedness from SARS to anthrax. He’s recognized internationally for his work to advance global health. Including serving as an assistant director-general at the World Health Organization.

So, we’ll get into that experience as well. So, I did not overstate the expertise that we are bringing you here this afternoon. I really want to thank all the panelists for being here. So, let’s get right into it. I want to start with a little bit of a kind of state of play, if I could and I’m gonna go to Laurie Garrett and to you Dr.

Zucker on this. We have all been kind of bombarded, almost daily with the kind of running count and maps about the spread of the Coronavirus. Let me start with you Laurie, and ask you just to give folks a level set, right. What is the scale and scope, and how should we be thinking about it today as we sit here, and then I’ll go to you Dr. Zucker on what’s the, what’s the situation here in New York, and how should we be thinking about that? – Thank you. I want to say two quick things before I answer your question. First of all, to the chair of our panel, thank you for your service in the Obama administration, for the tremendous pandemic preparedness infrastructure you created. All of which the Trump administration destroyed in 2018. So, we find ourselves without Lisa’s masterful system of preparedness infrastructure in place in America today as we face the possibility of Covid-19 reaching our shores.

Thank you everything you did. And two, (clapping) Yeah. I also see quite a number of Asian students in the audience and I want to say to all of you, I regret from the bottom of my heart, whatever racial assaults you have heard, or seen. Any mistreatment you have undergone. It’s unconscionable, there is no basis in it and you you deserve the support of everybody in this room and of all American citizens. So, to answer your question, unfortunately now I’m gonna bash China, and when I say that Chinese in China, I’m talking about Xi Jinping, the Chinese Communist Party and the leadership of the People’s Republic of China. We are in a very difficult situation as a global community right now, for two chief reasons.

One is that clearly the government of Xi Jinping has been lying about this epidemic from the very beginning. From the earliest stages in December before anybody was outside of China was aware there was this new disease but when physicians and public health people in Wuhan knew there’s a new pneumonia. There’s something killing people. It’s dangerous, it’s terrible. And as I documented in detail in a recent article in foreign policy, so I won’t go through it you can look it up if you want, but at every step of the way since publicly finally acknowledging the existence of this epidemic.

The Chinese government has created a narrative and said this is the narrative of the moment, and then made the data fit the narrative. When that narrative failed, go narrative number two and make the data fit narrative number two. That fails go to narrative number three. What are these narratives? Oh, we have an outbreak it’s a hundred percent about the fish market. Nobody’s got it. There’s no risk to anybody else. It’s all in this fish market. There’s no such thing as a Coronavirus in fish. So we knew right away it wasn’t a fish market, but you go from there and expand and you realize from the very beginning at traced already to early December there were cases spreading utterly independent of the wild animal market.

So there was already human-human transmission in Wuhan, that had nothing to do with that narrative. Then it was we’ve shut the market down, so now the epidemic will magically stop and we will now report there’s only 30 cases. There’s only 32 cases. There’s only and for two weeks the numbers never even hit fifty. One day they actually went backwards. Oh, we’ve made a mistake. It’s fewer cases than we said yesterday. They were all lies. They were fabricated numbers, whole cloth. One of the things that flies conveniently did, was create a perfect ratio of deaths to suppose of active confirmed cases. So that you had a fatality rate that was exactly what they wanted two percent. Then and when it was clear that there was florid spread well beyond the animal market the first person who spoke up about it was Li Wenlaing and his speaking up about it of course got him in deep trouble. You’ve all heard of him, the physician who has sadly died of Covid-19.

Wen Li, Li Wenlaing actually just sent a chat message to a physician chatroom. It wasn’t on all of Weibo or something. It was actually a fairly confined messaging, but because of it he and seven other physicians were forced to come before the secret police, sign a statement saying we are liars, we are rumor mongers, we made this up, it’s not true, and he had said the key thing that brought the attention of the state down hard on him, he referred to it as being quote something like SARS.

And of course the SARS virus outbreak in 2003 was covered up by the Chinese government under Chong Yuen. In a transition to Hu Jintao, and had a dramatic impact on the status of China and how the outside world saw them. So I don’t want to take up too much time going through everything that has happened since they finally publicly on New Year’s Eve announced that there was this epidemic and then a series of steps thereafter. I just want to put a couple things on the table and then tell you where we are I think at this moment.

One is we now know Xi Jinping addressed top party officials on January 7th, saying he was taking control of the epidemic, For the head of state, of the largest nation in the world, the second biggest economy of the world, with a whole lot on its plate that has nothing to do with a new virus, to actually say I am taking control of this, means he knew a lot, was worse than what was publicly told. He knew this was a much more dire situation than on January 7th was a matter of public record. That’s number one. Number two, we have had two major episodes where suddenly the alleged count, the number of infected, the number of dead, has skyrocketed in one day.

So you’ve had a baseline, baseline, baseline, then (increase wheeze) then baseline, baseline, baseline, (increase wheeze) In both those occasions they came the day after a major pronouncement from Xi Jinping. In one case it was when he sent out a message through the party infrastructure saying there shall be no more cover up, anybody who lies about this or obstructs the unfolding epidemic, response will be shamed for eternity, You know in Communist Party jargon, that’s pretty bad. So the next day boom, all of a sudden, there’s all these numbers reported. Now that was January 19 20. The second big one came more recently, February 12th, when all of a sudden it was announced that they were gonna count the numbers differently in Wuhan, and Hubei.

Not anywhere else in China. They’re still using the same old counting system classifying cases the same old way but in this one region the numbers will be counted differently, and that resulted in a huge jump. 14 thousand plus cases reported additionally in one day. Since then, the numbers have supposedly been slowing down. Now since then the deaths have supposedly been slowing down and it has been a matter of party rhetoric repeated many times over, over the last 10-12 days. That the epidemic has reached it peak and it will come down towards zero, sometime in March. And this is based on CDC data. Some of which was first published only about 24 hours ago. Maybe 28 hours ago. I lose track of time because I try to be on China time and America time at the same time and so you could imagine I’m not getting much sleep these days, but and this was a big paper, the first big paper to come out of China CDC.

There, that, they have a Centers for Disease Control, as do we. and this paper looks at more than 70 thousand cases and concludes that indeed the new onset of infection rate has been going down. So that what we’re allegedly seeing now, according to this study, is the catch-up time on incubation. Now the incubation period on this disease turns out to be very long, and one of the things we’re finding as we look outside of China things like the cruise ships where people are getting affected and some of the outbreaks in Singapore and Hong Kong, is that this incubation time which were initially told and assured by Wuhan authorities was three days.

Then we were told and assured by CDC China was 14 days. We now know is out as far as 24 maybe 25 days. What this means is that if what we’re doing is waiting for catch-up time on long incubating cases but not new infections oh we can’t be rest assured until the end of February. Now do I believe any of this? I was in the SARS epidemic in China throughout and in Hong Kong, and in the two years following I spent a lot of time investigating on the ground, the SARS responses in Vietnam, in Singapore, in Thailand, and back in the mainland, and in Hong Kong. So I have a really good idea of how the state, how Beijing responded to SARS and from by a maybe January 5th or 6th it was obvious to me that they had decided to use the SARS playbook in responding to Covid-19. What was the SARS playbook? It was, oops, we screwed up, we covered up for too long, we allowed the virus to get all over the country, we have no choice but to go to mass quarantines, roadblocks, temperature and fever checks all over the whole nation.

You know on any given day in Beijing I would have my temperature taken 12 to 15 times, every time you go in and out of a doorway of any building, and pulled over by police to have it taken as you drive down the streets. and then anyone with a fever, regardless of the cause of fever because there was no test to confirm SARS. You would be quarantined and they built those instant hospitals that we’ve had much ado about with the current outbreak, and you would be stored away in an instant hospital, until you went two weeks without a fever. end of story, and it worked, but it worked for SARS because the infectious stage of SARS actually was coincident with fever stage. So they actually were capturing everybody who was potentially infectious.

We now know with this virus you can have no symptoms at all and be contagious to another person. So without a way to test who’s infected and who’s not, the quarantine policy is almost definitely going to fail, The second problem is that the screening test they’d have developed, which is, for those of you science nerds in the group, it’s the RTPCR takes, you know, if you have an illumia or a high-throughput device to screen on, it’s about a four-hour test.

If you lack the high speed it’s a little longer but at any rate, you can get a one-day turnaround, on yes, no, you’re infected. Turns out to have a 50% false negative rate. Oops. So, then the third thing is a lot of people who really are symptomatic and in fact are in intensive care unit with pneumonia test negative. We don’t know why. They certainly have plenty of virus in their body but it comes up negative on the test. So the big change that recently was made was to add them in based on symptoms into the case count number. Bottom line, I think that they’ve made a series of blunders, and I’m happy to dissect them further in the Q and A time, if you’re interested. That have absolutely both undercut the capacity to control the disease and also undercut all global and National trust. There’s no reason if you’re in Wuhan today, for you to trust the Beijing government or frankly most of Wuhan authorities. And in eroding the trust nationally, they’ve played the WHO and I’m gonna let Howard talk about WHO but they played WHO like a fiddle, and unfortunately WHO is limited by the fact, that it by charter, has to deal with nation-states, not with individuals, not with the masses within the state.

So if the nation state chooses to lie WHO transmits lies and so my bottom line is, no I don’t trust any of the numbers. No I don’t believe that it’s only 75 thousand people infected to date. I think it’s probably quite substantially more than that and I’m deeply concerned that you basically now have about a hundred million people in China, who are not in their homes, jobs, and schools at the moment. They took, they left, and fled. They fled Wuhan. They fled any place they thought there might be a quarantine. They took advantage of the lunar holiday to go to home villages and various parts and they’ve not returned. Most factories are still not operating or are operating at very low level. Most schools are still not open and this is the whole nation I’m talking about. When these people are now under a lot of pressure from Xi Jinping to get the economy rolling again.

China’s hurting. This is very, very, very, economically painful. Some so they want everybody to come back to school, and factories, and I think we’ll see a second resurgence. – So you put a lot on the table Laurie, that I want to get into on the response front. I want to hear from Howard first, on you the numbers issue, right. I mean Laurie, I’m gonna put on the table, the outline that we’ve seen in some of the reporting here, has been 75 thousand global infections, and Laurie gave us some some food for thought and how we should trust that number and a death toll within China, only of about two thousand but obviously some cases in, you know, at least two dozen countries external to China. So how should we think about that and then what is the situation here in New York? I think you, like me, feel that we the first casualty in a crisis is reason in facts. So let’s get back to facts and perspective and hear your view on both.

– Sure, So New York, as New York State, with an international City, New York City. Every time our antennas are usually up, whenever we hear of something, whether it’s a infectious disease, or any of the problems that can occur on an international stage. So when this happened we were already thinking how is this going to impact us, particularly with John F Kennedy Airport, and the travel that we have. Immediately we’d spoke with the Port Authority, which is run by the governor and we sat down I had a conversation about flights coming in. at that time there about 15 thousand flights that were coming in to, 15 thousand people that were coming into the United States and many that came into JFK, along with SFO San Francisco, and LAX and elsewhere. Those number of individuals now is down to about 800 to 12, 800 to 13 hundred, according to the CDC yesterday.

So it’s a dramatic drop, but for New York, what we’ve had so far is we’ve had persons under investigation looking at individuals where there is concern. Whether they had traveled from a Wuhan and they had fever or if there was an issue of concern and there were 25 people of that that fall into that category between both the city city as well as the rest of the state and all those tests have come back negative so far or come back negative. So far we’ve had zero individuals in the state of New York. We continue to monitor those who come into the state for who are from either the Wuhan area or the or elsewhere in China and we have about over 400 individuals outside of New York City, and there are thousands of individuals within the city that we have been that have been monitored as a result of our concern to be sure that there isn’t in any risk of infection. These are some of the challenges that were obviously, we’re faced with as we as we move forward with any of the infectious diseases of this nature and we are used to this in the past.

I would like to put it in some perspective because a lot of times people get very nervous and very anxious about things and like I said we haven’t had a case here, but last week we had probably in the well I give you that some, the final number for the entire season so far, we’ve had over a hundred thousand individuals in the state of New York who have had the flu. We’ve had unfortunately thousands of deaths and we’ve had we’ve had unfortunately three pediatric deaths in the state from flu and in the country there are millions of individuals who have had the flu this season. and unfortunately you know thousands who have died and if you look globally even more so. So I think that it’s important to keep things in some perspective when we’re dealing with these things but to always remain vigilant and pushing forward on things.

– Thanks, for that Howard, because I do think that type of perspective is very very important. I know Governor Cuomo recently said that the common flu remains a far greater threat to New Yorkers and so it is, it’s important to keep that in perspective, even as we delve further into many of the very important issues that Laurie put on the table and that we’ll talk about for the rest of the panel. I want to kind of zoom out now and talk about the responses. Right, both it from China, from the international public health community and then obviously here in the United States, and let’s start of course with China, Laurie put some issues here on the table for us, but as I mentioned at the outset, we are really fortunate to have somebody in professor Qiao, who has spent some time in Wuhan.

It’s probably fair to say that many, many Americans had never heard of Wuhan before the Coronavirus story started to hit. Can you give us a little bit of a sense of the place? How should we think about the city? You know, for folks who are not familiar with that location and you know, kind of the anything you have heard or know to be the case with the kind of on-the-ground response there. – Sure, but firstly I have spent four years in Wuhan. I did my undergraduate study. And in the past month, I’ve been really talking to well, my parents in Hubei. So about far away from Wuhan and my two cousins in Wuhan.

While I was at Massey, he was working in a hospital. So I’m, what I’m seeing right now, I think, I actually admire Laurie for, many of the very insightful comments, as I agree with many points you have made. I think most important well actually we are going to be on same page, is that I think the current period, like what’s going on right now, I think it could be a recent, riskiest period, because the thing that people having in their house following demands you know people are becoming impatient and the government has is under this pressure to getting people back to work. That’s why I have been warning my parents in the past month in the past week basically, you know people who are alert don’t go outside because it’s a time like people think, okay you know, maybe it’s under control, right? People actually, I indeed, I’m talking to people higher and also in other part of Hubei.

People are indeed becoming actually a bit more optimistic because the government now is actually in action. So I think, that’s something actually I fully agree with but a certain thing because I have been trying to understand what really happened. Mostly from in inside of perspective, right. I would say we can really divide what happened in January into two periods. So from like, I will say like, the end of December to January the six, obviously the local authorities didn’t actually acts that badly, right. So actually on December 30th and December 31st, they already knew there was a bigger problem and physicians and nurses got infected. They already, actually I think December 31st, there had already been like a gene test by researchers. We know it was like 80% similar to SARS and the local the Public Health Authority in Wuhan already reported to the National CDC in Beijing on December 30 and our December 31st the National figures they already sent an experts to Wuhan, right. And from January 1st to January 6th the local Public Health Authority in Wuhan they already issued internal documents about this thing.

So basically, warning the hospitals to take actions. And also they had already started to issuing public notice to the public. Well, we don’t know why the numbers are good or bad but they already started issuing notice. So let us say it’s not that bad and also on January the 3rd the Chinese Government already started sharing information with the United States, with the WHO and also with like Hong Kong government and you know my other governments. So that’s why the Hong Kong government acted on January the 4th, had already initiated a so-called second a class emergency response. So obliviously from like the end of December to January 6th, it was okay at all feels like perfect but what was missing here and the two weeks you have there January 6th to January 18th.

– [Laurie] Yeah. – The other words the two meetings of the Wuhan City government and the Hubei City government, the Hubei provincial government. That was the most important public or political event right. Of the provincial and the city governments and it looks like somebody, you know suddenly pressed the pause button, right. Everything stopped. And the Hubei Public Health Authority stop the publicizing any information or when they did this, they said there was no new cases. So I think, of those as the two weeks we have really missed. So from my perspective, I mean I think there are two problems from a inside perspective. Why is it really the flow our information? Okay? The other is the principal agent problem, that was to say that according to recent a report published by Prime Minister Li Keqiang, right. The official, right, had already gave instructions on January the 7th but then why did local government wait until January the 20th to take a serious, serious action? So for me, because of all my expertise, in addition to property law, which had nothing to do with this event, is that your local government law So that I have always been interested in understanding the incentives, right.

The behavior patterns of local governments and how the interact plays the central government. I think that’s a key here. Let’s just say when the local governments don’t have Marshall Authority, or autonomy, how to basically get everything done by sending the information to Beijing and are waiting for the commands, the orders from Beijing. That’s like the big whole waste of time. I think that’s something inherent in the institution. That’s something when you to keep in mind and if in the future for responding to such a public health crisis. So that’s I guess, I’m using up my time. – [Lori] No, No, No. – But here. – Can you give us, I want to stay with you for a second and then also go to Dr. Phelan on this. Give the audience a sense, is there a legal framework that is being conducted here, that’s being operated under, is it extra legal how, how should we think about these levels and how they’re working.

– Sure, I think there are two things. The first is as a legal level as Dr. Alexandra will say, we have at least two laws one a law of emergency or the law of emergent incidence. Right. That’s one law. The other is the law of infectious disease. So this two law, two law is actually there are like many others, but they actually define. For example, you know, after water situations you know, you have the obligation to report to the provincial and also the central governments and who has the obligation and the responsibility to disclose the information to the public and water conditions. You can initiate the emergency the emergent responses. So that’s the law, which I think are very important and there are also problems with such laws. The other part is a political part, to the defector part. Is really about the relationship between the central government and local government because of many of our experts here like Professor Jericho knows, why of all secrets to China’s I will say relative success in the party from the 1978 to 2008.

The economic success is a so called the fact of federalism. Dare to say the central government gave the certain degree of autonomy in managing its economy, in managing the urban affairs, right. So local officials, so they are also motivated to a certain degree to you know to do their job. As good, you know, they can but they’re kind of the defect of federalism or decentralization has been somehow reversed in the past decade, because of this this effort from the central to centralized power. I mean there is a rationale for centralization.

I can give you one day lecture about that, but this centralization does have the problem of what I have been talking about the information flow right. Everything goes to Beijing. You can understand, it’s going to be very difficult to govern New York City or New York state from DC, right. It’s going to be much more time consuming. And you all do that right now. – [Lori] For the record Dr. Zucker did not comment on that. (laughing) – And a second to say that, well, assuming that leadership had given the instructions on January the 7th, right? Assuming the instructions are serious enough and clearly that the principal-agent problem, the local official clearly didn’t take instructions seriously enough right.

Otherwise the problem could have been solved, and instead the local officials they are very busy with their most important other events, The two meetings. Right? So I will just conclude away that last word, the local officials they are struggling with, I mean there’s three things right now. Right? – [Laurie] Well many of them have been fired. – Yeah, many have been fired but the three things the first one development, economic development. Right. A second thing is the social stability and the third thing is loyalty. As I call development, stability, and loyalty. It’s a very tricky balance to to maintain and the past decade, almost a decade, centralization, I think, may have made this, have made local official job even more difficult and what I’m seeing really the last thing, if you talk to officials in Wuhan, even the talk.

I mean the parties in Wuhan, who had to be removed and also governor Hubei, who had been removed. They wouldn’t really feel very, just it’s it’s just bad luck. They have said, it’s a typical playbook they did nothing unusual. – [Lauri} yeah – Right but again I think it’s a institutional problem we should really reflect a pond. – So Dr. Phelan let me get you in here I mean we’ve heard and we’ve seen reporting about the restrictions that have been put in place.

Laurie talked about her own experience through SARS. We had the report in the New York Times yesterday, I think it was about at least the half of the Chinese population under some form of restrictions. We’ve got reporting of the annual meeting of the National People’s Congress. That may be delayed it’s a huge, huge event. What’s yours perspective on these measures and the number of the issues that Laurie put on the table and the framework that Dr. Qiao has put on the put on the table as well? – Yeah. Thank you very much Lisa. I think I’ve agreed very much with a lot of the points that Dr. Qiao made, in particular with regards to the relationship of information sharing and the structural impediments of a bureaucracy. So rather than necessarily active conspiracy. there is also just simply the the structural impediments of a very slow-moving democracy and how that that flows, and I think there are some interesting parallels. That when we do talk about the United States legal system, I like the term de facto federalism, that you use because I think for the law students and the lawyers in the room there’s a lot of interesting issues about who has a duty to act for public health, who has the authority under law to act for public health, and what are the limitations on the exercise of that authority, that parallel quite nicely between the U.S federal system and this de facto federalism or centralization that we see in the Chinese scenario.

So if we’re looking now, at the these limitations that last question, which goes to vert of the question asked about the way in which quarantines and control and control measures are being implemented in China. You know, I think, there has been, what I consider a relatively unfortunate praise for some of the mechanism and measures that have been taken in China. I think that the starting point is at public health powers are there to protect the public health and they really derive from police powers in all in governments all around the world. These are quiet can be quite coercive powers and you know these are powers that in in effect constrain individuals liberties on balance for the protection of the public’s health. Now the right to health is a human right and so you say the right to movement and the right to life and these individual liberties, and we are in this process of always balancing these rights and ensuring that they are protected.

So a cordon sanitarian, which is exactly it’s exactly what we saw in Wuhan. It wasn’t a quarantine. What it was was essentially cordoning off an entire city so that people couldn’t come in and out, is a fairly arbitrary and highly restrictive and constrictive measure. That isn’t appropriately tailored to achieve a public health outcome. Right, because what it’s actually doing it’s not assessing the risk to individuals or the risk to spread. It’s essentially trying to trap and contain something in one place, at the essentially the sacrifice of all the individuals who are in that area. That is not only morally reprehensible but there are also legitimate issues of whether that actually is not just good for public health for the people in Wuhan, the public health of people in China, for public health of people around the world, because what we have seen in particularly the international response to these measures is a shifting of norms, some really important norms about what we accessory intervention for public health.

So I’m just going to say why this is actually quite bad for public health beyond just the very real human rights issues that emerge from these sorts of responses. Public health is reliant upon public trust. When a government engages in measures that cause fear, or uncertainty and aren’t appropriately tailored and do restrict liberties, you undermine public trust and public health needs people feeling comfortable to go to doctors, go to health care centers, engage with officials and tell them about their travel history, or potential symptoms, So that you can then accurately screen them, and test them and isolate them if they’re unwell, and actually provide them with treatment. You know, that is what a good public health response looks like, right. When you put people in position where they feel that they’re going to be locked up but they’re not going to have access to food or water or they’re going to lose their job or they’re not going to see their family, they’re it’s indefinite and perhaps they won’t have access to vitally needed medications.

You know that’s when you see people starting to avoid public health authorities and what that means is that’s when you get transmission in the community because people are sick and they’re avoiding authorities and they’re actually coming into contact with other individuals. So Public Health tries to avoid these measures and so one of the the core sort of tenants that we have and a test that is reflected in international law under the International Health Regulations which are leading law for international infectious disease. Also within the US Constitution and the way it’s interpreted in terms of limitations under under looking at the the fifth amendment and also the 14th amendment and how they apply to quarantines here in the United States and around the world and international human rights law, is the least restrictive mission necessary to achieve a public health outcome.

Mass quarantines are always highly restrictive they are not the least restrictive measure needed to obtain the public health outcome and come with a range of consequences. I’ll just leave one last sort of statistic on this particular point, UN Aids, executive director of UN Aids today has come out and made clear that there are a significant number of individuals in China, who are HIV positive who do not have access to their medications, are in at risk of running out of their HIV medications. That is just one small example of the logistical impacts and the supply chain impacts and the human rights impacts, the human rights health impacts, that overly burdensome measures can have and there are going to be thousands of those sorts of examples of other chronic diseases people, with who are going to be dying of secondary reasons as a result of these purported public health but really authoritarianism measures. – Let me ask you. Thank you very much for that and also for planting what I suspect are there’s some good fodder for a law school note or two from your your lay down there.

Dr. Zucker let me go to you on this last point that Dr. Phelan has made in terms of the role of the international community, UN Aids reference that she made, as we said at the outset, you are former official from the World Health Organization you just give you know a short description of what that is, what its role is, and the controversy we’ve had with the regard to the Coronavirus, in terms of their pronouncement about a public health emergency. – So I mean the WHO is an interesting organization. I will start by saying so I start by saying there are many very talented individuals over there. Mike Ryan is running these operations is a really talented individual and working hard but it’s also it’s in its own way it’s a political organization as well as Laurie mentioned it’s made up of Member States and the way it operates is in a system which I think in a lot of ways needs to be updated and changed, we move in a much faster pace today than in the the way the structure is set up and it’s the power that it has is limited in many ways, it runs the International Health Regulations.

There’s a handful of things that the WHO can actually do and to push forward. The biggest strength it has its convening power and it’s pressure to put other to make nations sort of do certain things because they will in some ways be shamed if they don’t and so I think that comes to play in many ways, but there is a lot of pressure put upon them and is an organization, as Laurie said that in some ways has the pressure of politics that comes into play. If they issue a public health emergency international concern there are some implications that come from that. There’s also money that, you know and a lot of ways, money will go out to some countries for support if there’s an emergency but in a lot of ways that the strength it has is it’s convenient power and its ability to sort of in some ways make people realize that if the WHO said this is problem, than the rest of the world is gonna turn around and say why are you not acting responsibly when that happens.

– So they came under a lot of criticism in during the Ebola epidemic, for waiting months for declaring a public health emergency of international concern. Here there were signs that they were moving slowly, not as slowly. What’s your perspective on that? – So I agree and the end so then the question is why? You know, what what happened is this you know, I’m not there, and so all I can think of is like sort of I’m sure there was much quite a debate going on about when to issue something of this nature is this something which is of concern and again it goes back a little bit as we were talking about before this meeting convened about risk and it’s not just risk individual risk but sometimes you know those who are in positions of authority may look at this as how they will weigh risk and sometimes there are other influencing there are other factors that may influence that decision. So I can’t speak the necessarily to exactly what happened in that room as those discussions were taking place but you know, as Laurie actually I think, was listening to that.

I wasn’t listening to the debate but I’m sure it was a challenging discussion of. – Oh my god. I think, you know, as if anybody’s looking for a subject to write, you know legal brief on, if Alex doesn’t beat you to it. It has we have a problem. we set up a system in 1948 that we call the World Health Organization. We set up the international health regulations in 2005 that were meant to sort of modernize the legal framework of WHO, specifically for outbreaks, epidemics, etc. Ultimately it’s about a bunch of incredibly overpaid people in Geneva with tax-free, tax-free incomes. Making decisions, thinking about poor countries. Along comes the two biggest, you know mega outbreaks of out time.

Actually the three biggest of our modern period since passage of the International Health Regulations, have occurred in the United States and China and so the two wealthiest economies on the planet, the two most arguably most powerful nations on the planet. One was 2009. H1 N1 in case you’re scratching your head saying America, and the other two, were SARS in 2003. The various bird flu outbreaks since, and now Covid-19 in China. WHO shows deference to the big and powerful, and acts quite differently to the countries that are less powerful, less economically advantaged, and what was going on in the conversation in the fyke decision process boiled down to this, I, Dr. Ted Rose, director-general WHO, have met with Xi Jinping, he’s an honorable man, and he is very deeply concerned about this problem, and they are taking radical measures all over the nation, and they are doing the right thing, and they will bring this under control and we must show solidarity and support to the Chinese people and government.

And meanwhile what we’re gonna all fall back on as our way to wiggle out of this one, why aren’t we declaring an emergency is we’ll wait until we see secondary transmission outside of China in another place. Where people are getting it independently from China. So then you have the cruise ships and it’s like, uh-oh, we better get moving and then you have secondary transmission in Hong Kong and secondary transmission in Singapore and it starts to be – So the pressure became – A little crazy. – To great – To great and they just finally had to do it. if I may, I wanted to make a couple quick comments off the very smart things that some folks here said.

– Let’s do that quickly, because then I want to get to the US response because I have to imagine people are gonna have views on that. – Well first of all, anything I say about China, you know, I have to show deference to the political genius on all matters China, sitting right here in the front row. So Jerry, I apologize for my ignorance, but there is no event more important in China for the leader than a well-greased, well-oiled National People’s Party Congress. It must function perfectly, everybody must ratify, blah, blah, blah, and of you’ve never seen pictures of it just Google you’ll see. I mean it’s, you know, ten thousand people in all in neat little rows with the giant star of the nation. Well imagine now take what google picture and now imagine everybody’s wearing a mask. Oops. That’s not going to workout. So there’s a tremendous amount of pressure to bring this under control before late March and the Congress and there’s already talk about having to postpone the Congress or cancel it.

– [Lisa] Yeah – And so this is really serious. What I think we are seeing now unfolding that has the goes to what you were talking about with trust, this epidemic has been securitized. A lot of people who have disappeared, supposedly to quarantine, have been journalists, Chinese journalists. Have been people who posted videos on Weibo that show brutal arrests, not by people in PPEs but taking advantage of the epidemic. Beating the crap out of people on the streets. Some of you may have seen people rounded up in downtown Beijing and stuffed into little tin boxes and you hear them screaming bloody murder from these boxes and nobody’s wearing masks and so on.

So this is not the quarantine, it’s they’re using quarantine response to round up dissidents. We’ve even seen videos of lines of men cowering, covering their heads and police going down and beating them with steel batons commanding them to sing the national anthem before they go to quarantine. And so, I think that that if anything you’ve been kind to them. This is at one point the bureau chief for the New York Times in Beijing, when it was announced that Li Wenlaing had died, it was an unparalleled outpouring of grief and rage on all Chinese social media. Usually people know you can’t express these things, you’ll get in big trouble. Right but people were so overwhelmed and it poured out and in real-time the New York Times was monitoring accounts being pulled (shoot) and you can see them right in front of you getting censored and the individuals account permanently blocked, and it was very the way the state responded to the death of Li Wenlaing. Everybody who goes to see Li Wenliang’s small memorial in front of the hotel is being photographed.

Every all their identity and history is being noted. You know if you dare to show honor to this hero of the epidemic. When Zhong Nanshan who was the sort of hero of the SARS epidemic in that he was the first physician in Guangzhou to identify there’s a new disease in my hospital and to speak up about it. He sort of has been brought out of retirement as a new figure in this epidemic and he broke down in tears sobbing on camera talking about the death of Li Wenlaing and this I think you know anybody in China to see this was just a huge political event. I, you know until the journalists that have been dragged off, who have been told they went to quarantine, are heard from again.

We have to assume that what has effectively happened and I would love to hear your comments on this but that what has effectively happen is that the ongoing security state has now thoroughly integrated with the securitized epidemic response and both are being used for political purposes and I would just remind you that in November, the Chinese government started a national campaign that involved these posters that look like Marvel Comics superhero drawings and they depicted like a bad guy in a Marvel comic wearing a mask and the poster said be a patriot never wear a mask, exclamation point and the reason because they’ve developed the world’s largest artificial Intelligence facial recognition security state and if you’re wearing your mask the AI can’t pick up who you are and therefore monitor all your movements. So you know, don’t wear a mask. Now, six weeks after they launched that campaign, they have to make it a law to not wear a mask and you are seeing people rounded up on the streets for failure to wear a mask. – So to really it’s a very vivid image and I’ve seen some of that also and in some of the news reporting.

We’ve talked a lot about the Chinese measures, of course, the Chinese aren’t the only ones who have had quarantine. I’d love to hear from you, Dr Phelan on some of the steps that in this country we’ve taken. Folks I know, we’ve been riveted by the cruise ship story but a few weeks ago, the first, I think I’m correct on this but dr. Zucker will correct me, the first really large-scale quarantine since the flu, since the 1918 flu pandemic was done, right here in the United States in California. Have I gotten that right Dr. Zucker? – Yep. – So Dr. Plelan the issues you brought up about Public Health and Trust give us your perspective on some of those steps and then I’d love to hear also from you Dr. Zucker on you know you have to advise the governor, How does one think about these issues? – The steps here in the United? – Yeah.

– So I mean Public Health powers are rather broad. They need to be. They need to be flexible, to be able to adjust to emerging infectious diseases or health threats that we may not may not be aware of and there’s this point about the largest federal quarantine since you know, Spanish flus is important because most of the time public health powers are exercised by the states or delegated from the state down to local authorities such as here in New York City and the reason being is that states have their police powers reserved under the Tenth Amendment of the Constitution and the federal powers for public health are rather specific.

So they are defined by the limits of the Commerce Clause. So where an infectious disease essentially can impact international interstate trade or Commerce or from a foreign, from some outside of the country into the United States and so as a result the CDC’s powers under the Public Health Service Act really narrowly defined for when there is that risk of interstate spread or spread from outside the country into the country.

The CDC’s rules for how they respond to infectious disease, outbreaks, like this outbreak, were revised in 2017. There are some really interesting political timing, it was all around inauguration and for many many years the CDC has been trying to update these laws in response to the revision of the international health regulations. Those international laws and under the rule the CDC can essentially isolate or quarantine or treat, someone who they reasonably reasonably believe has been infected by a specified communicable disease and those specified communicable diseases have to be in an executive order. Interestingly there hasn’t been an executive order for the Coronavirus and the reason is probably because it’s likely captured by the definition of SARS.

So a severe acute respiratory syndrome, broadly. What that means is that the CDC can impose quarantines and treatments and measures and we have seen these federal quarantines which are rather unique and new to see federal quarantines of individuals who are coming, who’ve traveled in the last 14 days to Hubei province, who are US citizens, residents, or you know don’t, fall within the range of exceptions, that are set out by the federal government and can be put in these quarantines. I don’t believe those are necessarily appropriately tailored measures. There has been numerous people coming into the country subject to previous CDC guidance, who were able to engage in home quarantine, and self monitoring, and much less restrictive measures, and well before these other quarantines were imposed.

And there are a lot of challenges with implementing these sorts of measures in terms of actually being accurate travel histories People traveling on different passports, you know, because people can we duel citizens. So you know, these seem to be a little bit more theater and a bit more, and more restrictive than necessary. I think when we look at something like a reasonable belief of someone being infected from a Supreme Court precedent point of view. That point of view, really you know, we require the Supreme Court says that we need clear and convincing evidence if you are going to be compulsory confining someone and that is a much higher standard than reasonable belief. We haven’t seen that necessarily tested in this sort of outbreak and you know what that would mean with the current Supreme Court because you know we look at how they say different travel bans have been interpreted by the Supreme Court and whether we would see a similar division along those lines based on the government having a you know a relatively legitimate interest in protecting public health even if these measures do not appear to be appropriately tailored before their name.

– So Dr. Zucker, I want to leave a few minutes for questions but obviously we’re nowhere near needing any kind of quarantine, let’s be very very clear about that but just as somebody who advises the Govern and who would be the one to be making these calls, how do you think about it? – Sure. So, first I was just say for the law students in the audience, you’d always wonder in class how Gibbons B Ogden from the early eighteen hundreds and Jacobson versus Massachusetts right, – [Lisa] Oh wow, that was impressive pulling that out – The early nineteen hundreds.

These things that we studied in school, and you say is this gonna be relevant? Yeah, it actually is. They do come back to to surface in life. So the I am, the way we when you make these decisions you really do have to sort of weigh the public health and the public safety issue. These are these are tough decisions to make them and we’re the best thing we can do is always to continue to monitor. You don’t want to overreact to situation as I just mentioned about flu and as the governance spoken about, you know, constantly about the risk of flu and versus the the risk of Coronavirus but the best way to do this is just to keep a very close eye on everything that’s going on.

Any case that, any person won’t say case because we haven’t had a case but any person you’re concerned about, you monitor, you try to track, try to figure out what is going on. Keep a close eye and we’ve had and this is very labor-intensive even I should say like intensive. Is anytime someone of concern you really do have to go back and try to figure out all the epidemiology that’s involved here and to move forward. I will draw from the example of the measles outbreak because that is a great example where and this was only within the past year, we just finished dealing with us in October and we had a real challenge there. We were working with the community and how far and how much can you push and what do you need to do and what can you do to make sure kids who are at risk or potentially infect are not in school and so this is where you decide okay, how much, what do you need to do it and to make sure that the public remains safe and it is a balancing act and I can’t give a specific answer because every case is a little bit different.

That was one scenario, this is another scenario and so you need to keep it in perspective and also it is dependent upon different regions. I mean it’s a little bit a different issue. For example the measles issue was specific to a certain number of counties but it could have spread. It could have spread more. Fortunately the state has a very high immunization rate except for these small pockets, but we the way you advise anyone you know, a governor, or others is to sort of be sure that your remaining very vigilant on top of the issue on a regular basis.

– Great. We’ve got a minute or two for questions. I know we have a hard stop at two because people have to go to class. Professor Cohen. Let’s get you up. – [Cohen] Is there a mic? – Yeah, there’s a mic coming to you. – This is a great panel and I congratulate the organizers and participants. – Thank you. – Let’s talk in conclusion about what are the implications of this experience for governance of China because however important these medical problems are, they will pass. – Yeah. – But the Chinese government, the Communist Party of China, Xi Jinping is going to remain. So what I want to know from our extremely good speakers, is what do you see about the implications of this? Is there likely a result of this experience to be more freedom of speech in China, less government manipulation of the media? Would you have greater freedom of information in China? Are we likely to have more civil society NGOs rules than have been allowed, so far? Will the police be less arbitrary and coercive as a result of their highly publicized depredations? What are we likely to see with respect to federalism, centralization, more centralism or less? – So I’m gonna ask our panelists to give and I’m gonna I’m gonna use the power of the chair.

I’m gonna be positively President Xi like here. – Okay. – And say lightning round. More open, less open. – It’s already less open. They’re gonna crackdown like crazy and they and you will note in all Chinese data, Taiwan, Hong Kong, and Macau are listed as Chinese mainland data. – [Lisa] Dr. Phelan? – So I’ve lived in China on and off over the last 20 years and phrase I’ve said since the beginning of this outbreak is that 2003 is not 2020.

SARS is not what we’re gonna see now. 2016 is not 2020. The open China, the positive ideas at that time that we had four or five years ago, before Xi Jinping came into power, is not all we’re gonna see now. I think the changes that all enable Xi Jinping endure this occurred in the last three years. Particularly civil society, information sharing.

I think that it’s more likely to get more this I don’t think this will rock him in the way that some people would thought it would. – [Lisa] Dr Qiao. – I think we have to take a long-term perspective. I think in the long run we have to believe in the power of the society and the power of the people. And the government, whatever it is, have to live with the more you know, mobilize and more powerful society, and people to govern. – [Lisa] Dr. Zucker, you’re happy too, I’m happy to have you weigh in on this, or for you to give a public health announcement for everyone to get the flu vaccine.

– I would give the public health announcement that everyone should get their flu vaccine because even though the numbers you know, this is everything’s well, it’s just February you still should get your flu vaccine. Our numbers still go up. Last week was our second highest number of flu cases that we’ve had in decades. You know a per week. For one a week period. – I think that type of perspective is a very good note to end on. Please join me in thanking our wonderful panelist. (clapping).

Read More: COVID-19 vs. the Constitution: How Far Can Governors Go to Fight the Virus?

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