CBS News | April 28, 2009
By Declan McCullagh

The U.S. Department of Homeland Security has sent a memo to some health care providers noting procedures to be followed if the swine flu outbreak eventually makes quarantines necessary.

DHS Assistant Secretary Bridger McGaw circulated the swine flu memo, which was obtained by CBSNews.com, on Monday night. It says: "The Department of Justice has established legal federal authorities pertaining to the implementation of a quarantine and enforcement. Under approval from HHS, the Surgeon General has the authority to issue quarantines."

McGaw appears to have been referring to the section of federal law that allows the Surgeon General to detain and quarantine Americans "reasonably believed to be infected" with a communicable disease. A Centers for Disease Control official said on Tuesday that swine flu deaths in the U.S. are likely.

Federal quarantine authority is limited to diseases listed in presidential executive orders; President Bush added "novel" forms of influenza with the potential to create pandemics in Executive Order 13375. Anyone violating a quarantine order can be punished by a $250,000 fine and a one-year prison term.

A Homeland Security spokesman on Tuesday did not have an immediate response to followup questions about the memo, which said "DHS is consulting closely with the CDC to determine appropriate public health measures."

The memo from McGaw, who is DHS' acting assistant secretary for the private sector, also said: "U.S. Customs and Coast Guard Officers assist in the enforcement of quarantine orders. Other DOJ law enforcement agencies including the U.S. Marshals, Federal Bureau of Investigation, and Bureau of Alcohol, Tobacco, Firearms and Explosives may also enforce quarantines. Military personnel are not authorized to engage in enforcement."

Quarantines are hardly new: their history stretches at least as far back as the Bible, which describes a seven-day period of isolation that priests must impose when an infection is apparent. The word literally means a period of 40 days, which cities along the Mediterranean shipping routes imposed during the plague of the 15th century, a legal authority reflected in English law and echoed in U.S. law.

Congress enacted the first federal quarantine law in 1796, which handed federal officials the authority to assist states in combating the yellow fever epidemic. In response to the 1918 influenza epidemic, states levied quarantines and imposed mask laws – with the District of Columbia restricting residents to their homes and San Francisco adopting the slogan "Wear a Mask and Save Your Life! A Mask is 99% Proof Against Influenza." Public health authorities quarantined the entire campus of Syracuse University for two-and-a-half weeks in October of that year.

Until recently, the last involuntary quarantine in the United States was in 1963. Then, in 2007, Andrew Speaker, an Atlanta lawyer, was quarantined inside a hospital in Denver on suspicion of having extensively drug-resistant tuberculosis. It turned out that the CDC was incorrect and Speaker had a milder form of the disease.

The CDC's error is one example of how quarantines can raise civil liberties issues. If a suspected swine flu patient is confined to a hospital isolation ward for a week or two, who pays for the bills? What if private businesses find their buildings requisitioned in an emergency? Or if hospital employees charged with enforcing the quarantine fail to show up for work?

McGaw's memo on Monday also said that the federal plan to respond to pandemic influenza was "in effect."

The Bush administration released the National Strategy For Pandemic Influenza in November 2005; it envisioned closer coordination among federal agencies, the stockpiling and distribution of vaccines and anti-viral drugs, and, if necessary, government-imposed "quarantines" and "limitations on gatherings."

A Defense Department planning document summarizing the military's contingency plan says the Pentagon is prepared to assist in "quarantining groups of people in order to minimize the spread of disease during an influenza pandemic" and aiding in "efforts to restore and maintain order."