Lawfare Daily: Why Public Health is Critical to National Security

[Intro]

Atul Gawande: There is absolutely room for improvement and I carried out some of that work to improve matters. The wholesale shutdown is certainly not one of them, and the throwing out of the entire program, you know—they're pausing a, a jet airplane in mid-flight, firing the crew, and expecting it not to be a catastrophe. It's become a massive loss of life.

Natalie K. Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare with Atul Gawande, a surgeon and public health expert who previously served as Assistant Administrator for Global Health at the United States Agency for International Development.

Atul Gawande: There are multiple layers from the most distant, compassionate effects that I think are really in our national security interest and have demonstrated value to the most immediate ways in which you're stopping diseases, you're stopping spread of conflict.

Natalie K. Orpett: Today we're talking about the dismantling of USAID, the cuts to public health funding, both domestically and globally, and what it all has to do with national security.

[Main podcast]

Okay, so Atul, I've invited you on to talk about what I think is probably a somewhat unexpectedly broad topic which is how in the first only couple of weeks of the Trump administration the policy changes, the actions that are taking place there are affecting public health as a national security matter. And you know, I think it's a broad question because there have been a lot of actions both domestically and internationally.

You're a former assistant administrator of USAID, so I do wanna talk to you about that, and particularly about one litigation that I think has some very important themes with respect to public health as a national security matter. And we'll get back to that, but I, I wanna talk to you about something from a very broad perspective, which is why should we think about public health as a national security issue as opposed to just a moral one or an issue of good governance or the general public good?

Atul Gawande: I love that you're starting there and let me just say thank you for having me on the show and for having this conversation. You know, I'm, I'm a doctor fundamentally, so, the chance to talk to you and unpack some of what I'm seeing and experiencing and see it through your legal lens is actually exciting for me too.

Why is public health national security? There are multiple ways, but let's start with a basic one that disease threats have caused already around the world multiple times during the last century. And we have experienced ourselves during COVID a level of death that you don't see except in wars, and often eclipsing that, right? 15 million people died in less than, less than two and a half years during COVID and that shut down economies, disrupted entire functions of life in, in absolutely critical ways. If that's not national security, I don't know what it is.

And during the time—so I got to lead Global health at USAID as as you mentioned, and during the three years that I was there, we were able to make investments around the world to build a network of 50 countries so that we didn't have blind spots to emerging threats and to be able to move much faster. So, for example, when you have Ebola or other viral hemorrhagic fevers that, that are deadly and spread around the world in a single plane flight. We moved the time for response from more than two weeks on average, as recently as 2018, to getting it down to be in less than 48 hours. That is, you know, the definition of what national security is.

But going beyond that, there are many parts of the world where our tools of defense or diplomacy don't extend to places with the same level of influence that doing work in global health and, and development generally allow us to drive. So, you know, our major relationships in Africa, in Asia, and parts of our relationships in Eastern Europe is through mutual investments and partnerships that we're making around stopping diseases in the world—not just the ones that can come kill us, but also malaria, controlling tuberculosis, which we've gotten under control in the United States decades ago, but is the single biggest infectious disease killer in the world, more than a million dead per year.

These kinds of deaths in these communities, the work that USAID does affects the stability of countries, affects their economic development; USAID was pivotal to 11 of our 20 top trade partners in the world, developing economies that could then be, improve global prosperity and our own prosperity. So there are multiple layers when you start unpacking how important public health is for national security.

Natalie K. Orpett: Okay, so let's dig in for a second on the domestic front, because I think what you have to say about, you know, preventing massive pandemics that will kill, you know, hundreds of thousands or millions of Americans by getting at them from the front end as you were describing—meaning having presence in places where they may originate—is very compelling.

But say you're talking to a skeptic, to someone who's, you know, a real national security traditionalist who says, listen, disease, illness is all very sad and it's a big problem, but I'm here to focus on being the most lethal, the most strong, having the biggest weapons, being able to deter and combat in a kinetic sense. You know, the, the matter of health and protecting our people from disease has to be secondary to those concerns.

What about thinking about public health as a domestic matter is. As important, what would you say to that sort of skeptic about why aspects of public health rise to the same sort of level?

Atul Gawande: Well, what I would say is to, to zero in on what you said about needing our weapons against the threats to the country. Our weapons are not just guns. Our weapons include being able to deploy capability around the world and in our own country to stop disease threats as they emerge.

Let's take measles for example, for example. So our goals in stopping threats to our own country is improving the literally the security of our own people. Children have had a massive reduction in their likelihood of dying, not just because of the ways we've secured a more peaceful world, but also in the last 50 years, we've driven a 75% reduction in the likelihood children under five would die—a massive gain. 40% of that gain is from vaccines alone. The number one vaccine driving 60% of the vaccine gain is measles vaccine.

Now, our failure to have sustained our measles vaccination in the country has meant that we have now a surge of measles outbreaks occurring across the country—seeded in Texas, now spreading to other parts of the country—and new introductions that are coming from abroad because the breakdown in global vaccination under COVID and then being sustained by vaccine skepticism has led to global deaths for children from measles alone exceeding a hundred thousand deaths a year.

We have outbreaks in more countries around the world now, and more than 30 of those countries are severe outbreaks. That means that we're getting importations. We had one come into Dulles Airport and lead to, you know—now public health, you know, response absolutely needed in that space.

I could go on down the list. Measles is not the only one. Polio, global return of HIV as a major threat is part of the risk we're enduring by the dismantling of USAID and much of the global operation that has brought HIV/AIDS not just under control, but to levels not seen since the late 1980s.

Natalie K. Orpett: Yeah, and I'll, I'll just add as a, you know, probably pretty obvious, but I think less discussed aspect of this, which is that you, you really can't build a lethal force of the people who need to, you know, be behind the weapons if so much of your population is, is really ill.

I think it's something that you see in developing countries where the health infrastructure is just really not strong, you know, hopefully yet—hopefully it improves—but there's a very direct connection between the ability to be a military and intelligence force, and the population and, and its direct health. And that may be over the longer term, as you say, if, if child mortality goes up or child morbidity goes up and it affects education over time, I mean, you're talking about a very different population that will be pulled from to, to formulate this.

You know, talking again, to the skeptic that I was describing, that is actually quite a direct connection to the sort of kinetic military force that would be the focus of that particular skeptic.

Atul Gawande: I totally endorse what you're saying. The Department of Defense actually was a, a critical partner to me in our work on responding to disease outbreaks.

In large part, you know, they are a major contributor of research centers and laboratories around the world, precisely because they need to have troop fitness and understand what's emerging. You know, our surveillance that extends, you know, to more than 50 countries around the world in a network that allows us to see disease has been disabled and dismantled.

That is surveillance for bird flu; it's surveillance for anthrax, emerging in livestock; it's also surveillance for basic outbreaks like measles and the, you know, troops not getting their adequate vaccinations are at risk of those kinds of diseases. Also for Ebola and, and, and go on down the list. HIV is a major concern for the military, and the military is a, is a, a substantial partner around the world in addressing and controlling HIV as well as other STDs.

Natalie K. Orpett: And I'm glad you mentioned research in there because I had wanted to also ask you about what I think is sometimes being portrayed as adjacent to public health, but I think is very much part of it, which is another facet of the administration's actions right now are to defund the National Institute of Health and particularly, which of course is focused primarily on medical research and broader health related research. And you know the people I know who are in that space are at a, an 11 out of 10 in terms of their degree of alarm about this.

And I think this is another area where—okay, let's pretend we're talking to our skeptic again, who thinks to him or herself what does a bunch of research by scientists in a lab that takes 10 years to complete that costs a lot of money that I can't read the abstract of and see any connection whatsoever to the lethality of our forces—what do you say? How do you explain what the connection actually is there?

Atul Gawande: So many connections.

First, to understand USAID was the soft target, so to speak, the the easy space to develop the playbook for the takedown of other portions of the government. That was where the learning took place, how to terminate contracts, suspend payments, purge staff, get rid of buildings, and then that's been applied. Now we're seeing it across public health and in research at the National Institutes of Health. Some of the programs that have been targeted are any research on vaccines, improving vaccine uptake and how to drive better results. Also, the development of new vaccines, including mRNA vaccines being targeted.

The larger enterprise that's under attack is the whole infrastructure of science across the country with large scale suspensions and terminations that are totaling in the billions of dollars for a scientific enterprise that we lead in the world.

This is vital from a national securities perspective in two ways. Number one, our security depends on the strength of our economy, and most of the growth since World War II—the more vast majority of the growth in the US, US's economic productivity relative to other countries—has come from our science enterprise and our research and development capabilities.

Second, the more basic the science is the closer it is to fundamentals and not just coming up for it with a drug for this or that, but actually understanding what's the nature of the genome—doing the human genome project, which costs $13 billion—that has led to the development of entire industries, like the whole biotech industry that has put us ahead of the countries in the world. And so that has been essential to our ability to have impact.

And then, you know, 99 out of, out of every a hundred drugs approved by the FDA have originated in work, done in places like the National Institutes of Health, in the, in the basic discoveries and science that, that we have and undergirds our ability to simply live longer. You know, in the United States, the average survival in 1900 was 47 years. Today we approach 80 years, and in the highest levels of income and education, it's actually a 90 year life expectancy that people are able to count on, on average because of a century of discoveries where the U.S. has led the way.

We in the last decade have seen flatlining and, and declines in that investment to begin with, so that we are already seeing that China is supplanting the U.S. in its impact from science. As a case in point, for the last five years, China has led the world in the most cited scientific papers being generated in the world, where the U.S. used to be the runaway number one. They are more than doubling down on the investment in science and research development, because they understand that that is where the future comes from.

And we used to be capable as a country of making investments now for the sake of our success and prosperity and impact later, and what's being dismantled because it doesn't—well, we can talk about the whys that a, a lot of them don't make any sense—but the dismantling that is taking place of major programs often for very punitive, shortsighted reasons is costing us a generation of scientists and public health experts and causing immediate impacts that will only get bigger with time.

Natalie K. Orpett: It's a little bleak. Alright, well, let's change gears a bit to talk more specifically about USAID, which of course you have very intimate knowledge of, and there has, as you mentioned before, has been a particular target really very much from the first day of the Trump administration when the president issued an order that put a freeze on foreign aid, which included assistance distributed through USAID. It's actually an entity that I think prior to the president's targeting of it was probably not very well known broadly and is now I think probably mostly known as the sort of target of a lot of ire and focus and litigation.

I should also say that USAID—to the extent people were aware of it or its work—I think was, and probably still is subject to a lot of misunderstanding because in particular there is a general sense among Americans that an enormous amount of money goes into USAID. And that's of course been the, the rhetoric and the portrayal of it—that it's, you know, a corrupt enterprise, that it's wasting taxpayer dollars, that just a tremendous amount of money is going in and nothing good is coming of it. And of course, the actual reality of the numbers is, I think it's about a quarter of a percent of the United States’s GDP goes into foreign aid. But that is a disconnect that we're gonna have to take into account here.

I want to talk as we have been about USAID and its connection to national security,. And as I mentioned, we'll switch later to the, the specific litigation I wanna talk with you about, but before we do that, let's just situate USAID as an entity. And I'd be particularly interested in hearing from you about its work, sort of not in the broad sense, not in the it's good for America to do good things for other people, it's all well and good—you know, thinking again of our skeptic who thinks in very traditional sort of narrow terms of what national security means, thinking okay, making other people help healthy in countries around the world is sure good for America's reputation, but what does it really get us?

So I'd, I'd love to hear from you some more sort of concrete examples of the type of work that USAID does and what its connection is to the United States' security that goes beyond, it's a gesture of goodwill and that makes people feel good.

Atul Gawande: Let me start with where you started, which is the, how much money goes to USAID. You know, as you said, it's, it's about a quarter of a percent. What does that actually mean? The average American taxpayer pays a little over $12,000 per year in taxes, of that $38 goes for the budget for USAID.

What is that getting you? When I arrived in office, one of my goals, you know, the clear goal I had to take charge of was around Covid and addressing the pandemic. But about eight weeks in, Russia began to attack Kyiv and our team on the ground in Kyiv—we didn't have military people on the ground, and it was USAID that was the capacity that was available. These were civilians who are American ground force without guns, and they are a substantial ground force all across the world. It's in, on the order of about 10,000 people. The global health staff is about 2,500 people in 65 countries around the world touching about a hundred countries.

And so immediately the, the job became, you know, the Russians cut off the supplies of medicines to the country; they attacked the oxygen suppliers to the hospitals and put the hospitals under direct attack, kinetic attack, as well as cyber attack, which locked up the electronic systems of virtually every hospital in the country.

Within four weeks—honestly, this was where I learned what our teams were really capable of—at the same time that they're needing to address security for their own families, they were able to organize and partner with the government to get new supply chains that brought medicines in that could support their entire country. Over 50% of the pharmacies were opened within about four weeks, got to about 80% over the next two months.

Second, were able to work with the government to move the entire electronic medical system to the, to a cloud-based system with American support. That meant that it was cyber, it was protected against cyber attacks, and clinicians could get back up and working online. Just even that, I can't tell you how incredible that is—it took two years for my hospital in Boston to change its electronic medical system. This happened in weeks. And then you had the, you know, needing to arrange transport and avenues for oxygen to get to key populations. Incredible, right?

And you know, today USAID had been supplying energy resilience, so helping rebuild, you know, as fast as energy was being attacked—energy sources for the country were being attacked by the, the Russian troops government—they were working to get support the country to bring capacity back on again as well.

And that is all cut off. That all has been shut down and this is work that happens across the world, whether, you know—so it goes beyond the global health work. Between humanitarian assistance and global health work, that's more than half of the budget. And I'll say on the global health side, with a budget that is half of the budget of the hospital system where I work amounting to about $6 or $7 per person, per American, our teams of 2,500 people reach hundreds of millions of people around the world and save lives by the millions.

The accusation that it's inefficient, there is absolutely room for improvement, and I carried out some of that work to improve matters. The wholesale shutdown is certainly not one of them, and the throwing out of the entire program—you know, they're pausing a, a jet airplane in mid-flight. Firing the crew and expecting it not to be a catastrophe. It's become a massive loss of life and mismanagement of billions of dollars that taxpayers have put forward. So, you know the, there's the national security implications of losing this ground force, going well beyond health and humanitarian needs, and then impairing and destroying that capacity.

Natalie K. Orpett: This type of work is often referred to as soft power. I have actually always thought of that as a bit of a misnomer because it, it sort of detracts from exactly what you were saying, which is that it massively increases capacity in a way that you can't plan for just by having people on the ground in places where inevitably unexpected things happen and the response can be immediate and can be incredibly efficient and effective.

So I've sort of started thinking of it to myself as pragmatic power is the better way to understand it. It's a whole lot cheaper than having U.S. military forces or intelligence officers based in every country in the world where a, a threat of some sort may originate from. The discussion and the sort of soft power header of, it's good because being on the ground there, doing affirmatively good things helps with positive influence and that's good for combating adversaries who may also try to exert influence, I think is, is very compelling because, you know, it should be obvious.

You, you combat things like anti-Americanism if the people in the community can say, well, hey, I have these giant bags of food that say USAID from the American people stamped on them and I've seen all of these concrete benefits to me. And so having my leaders or, you know, neighboring countries trying to convince me that America is the worst and we should mobilize against it, is something that really gives me pause because I, I see concrete benefits.

These are all pragmatic things to do. They are combating threats as they emerge or ideally and I think oftentimes before they emerge. But of course it's difficult to prove a negative, especially to a skeptic.

Atul Gawande: Showing up and saving lives of the poorest in the world in ways that you indicate you're a friend is an absolute source of leadership for America, a source of power. We have been a symbolic desire for the rest of the world. We have symbolized freedom, self-determination and science, knowledge, prosperity, and bringing that to the world in a friendly way, and a with a helping hand instead of a only a fist, is crucial to opening up our space for broader action and influence in the world.

And then add to that all the things I talked about that have the more direct impacts that by being on the ground in these places with incredible civilian capacity, we can do things that the military can't do and aim for mutual goals, goals of mutual cooperation that have extraordinary impact, whether it's reducing famines in the world, being able to control the HIV/AIDS epidemic and the near elimination of polio, which now we're at risk of seeing a return, and we had a case as recently as 2022 where there was an outbreak in Rockland County, New York that required response in order for polio not to make its way back in the United States.

So there are multiple layers—from the most distant, compassionate effects that I think are really in our national security interest and have demonstrated value to the most immediate ways in which you're stopping diseases, you're stopping spread of conflict, you're, you’re stabilizing countries, helping refugees, so they are not migrating—and all of those effects are some of the best buy buys we have in the U.S. government.

Natalie K. Orpett: Okay. I, I wanna go back to something that you mentioned briefly, and I would love to hear from you on specifically, which is that your reference to the fact that yes, there are things that could have been reformed and can be reformed, can be improved.

Let us start with the, with positing that there is always some improvement to be made in everything. But you know, we're seeing, as you said, the mechanism right now is to fire everyone on the airplane and tell it to stop midair. I suppose you could also call it the manifestation of the move fast and break things, ethos.

So I'm curious from your perspective, building on—you know, tell us about what you did while you were there, you mentioned that you had worked on some reforms—and tell us about the path that's not taken by implementing this approach instead. So, you know, we should talk about the damage that is done, in very real and irreversible ways from taking this approach, but tell us also about what could have been done, what reforms are needed, and what the appropriate way would've been in your view for addressing them.

Atul Gawande: So lots of things we can talk about.

So one thing is that a lot of impact at USAID was not done in ways that have clear metrics so you can know, am I getting value for our investments as a country? And one of the things I introduced was it's not just whether we're making progress on this disease or that disease, but are we bringing countries to be able to have overall better life expectancy and move towards a system that can be self-reliant?

And so I introduced a basic metric that covered all of our, our global health work, that it should reduce the percentage of deaths in the countries where we work that occur before the age of 50. And you can understand that if you're losing people before the age of 50, you're losing people before they are able to build the economies that are needed and not only meet the humanitarian need, and second, that we should be building systems that allow the them to stand up their own primary healthcare systems and advance those systems in ways that allow them to take over more, you know, more and more of the functions of their economies as they advance to middle income status.

One example of a program that's a thread of being cut is our support for the global vaccine alliance called Gavi. And this was, you know, co-founded by the United States with multiple other countries. And one of the things that, you know, we work to do was have it, so our contributions to Gavi are 15% of the overall budget. There are other way, other places where we're often 50% or more of the other budgets. So we, we were able to bring other countries on board. So we are, you know, we're, we're more than 20% of the GDP of the world, but we are, we're actually below that in the contribution in this agency.

Second, every country, even the poorest, has to pay something in order to get vaccines. And that could be as little as 20 cents. But as their economies improve, they need to pick up more of the expenses and then move to transitioning off as they become middle income countries. And we've seen multiple countries exit that path.

Other programs, we've had to introduce that same approach. Family planning is one space, you know, the U.S. is the big, was the biggest leader in the world in support for contraception and improving access for women around the world, which saves lives and improves autonomy, participation in the workforce and so on.

And that similarly has shown that you can graduate countries from assistance. We haven't had as much effect doing that in HIV and there was a five-year plan to move countries to self-sustaining status and exit from the PEPFAR program—the HIV global program that the U.S. supports—especially as they hit the middle income level, and support building more of the care through primary care systems rather than standalone systems around the government systems.

So one other area then I would say has been really being able to also carve down and recognize whether we’re investing in local organizations that instead of, you know, the multinational or U.S.-only organizations that we're also building the private sector and capacity in the countries where we work.

We were critical at, when I was at USAID in arranging financing, for example, in Kenya, building its own diagnostics and manufacturing capability—that serves our interests. Because China is the dominant, dominant, we're, we're sort of solely dependent on China for many core aspects of medical production, and getting capacity built in Kenya—through a program that the first Trump administration actually started that brought U.S. investment and private sector investment together—enabled capacity there and we have, you know, radically increased the amount of flows that we're going through, those kinds of investments for greater efficiency.

And then finally, around corruption—on, on one level, the claim that USAID is a criminal enterprise with corruption up and down the organization is simply not true, right? 94% of the, of the funds that USAID expends gets audited, which is unlike almost any other agency out there. It's the most accountable agency in the U.S. government. But nonetheless, that process does uncover about 0.3% of the funds have been questionable, and we've had recoveries around corruption, and there are still spaces where, you know, we saw malaria commodities that were disappearing in the, into the hands of other enterprises, criminal enterprises that are selling goods in the, in the market and taking U.S. goods, and we were aggressive about pursuing those.

Most of the issues around waste in the government are less of that corruption kind, though that work has to be ongoing, and more of the how do we spend less and get more in a concerted way and having our, you know, metrics and staff to really address how do we keep increasing productivity? We lowered the price of TB drugs by 30%. We lowered the price of TB diagnostics by 20%. That's a better buy for the U.S. taxpayer, but also means any given amount of money serves that many more people. We were aggressive in that direction in the TB work and in some of the, in the HIV work; there is more opportunity in spaces like that as well.

Natalie K. Orpett: Okay, so just to, to recap to make sure I understand, it sounds like the two big themes that you identified are reforms in the sense of adding more metrics to give some concrete numbers behind the type of work that's being done so that it is, you know—to the extent there are improvements that can be made—it's a lot easier to pinpoint them and start doing those changes if you have concrete numbers to work with.

And the second theme being to better focus on long-term development of local capacity, so that over time the idea is, you know, we—we meaning the United States humanitarian apparatus—doesn't actually need to be there anymore, and we've not only built the goodwill along the way, we've also made these countries more sustainable, more self, self-reliant, and you know, hopefully, and I think in my opinion, demonstrably better partners of the United States as they develop that capacity. Does that capture it?

Atul Gawande: That does. And, and I think the third part, which I didn't express as well is on the corruption side, that also needs more transparency and metrics. Our major space that has a vulnerability is anything where we're acquiring and distributing commodities because they can disappear, right? Or money can, can be misused.

And we have contracting out that was to be executed but has been shut down, that would've enabled a much more data-driven supply chain. You know, Walmart knows exactly which items are on the shelf and where at every part of their supply chain, and USAID needs that state of the art supply chain capability as well, so that it's not just, you know, the agency knows what the status is of commodities all the way down to the warehouse level, but you need to understand it all the way down to does it get to the clinic and is it being used in the right way? That is possible to know, and the contracting to enable that kind of next generation supply chain capability it was one of those that got shut down. Hopefully it might get pulled back at some point.

You know, one of the ironies of the situation is almost everything that's being done right now degrades the three things that we just discussed. We have let go of the, the data systems to track and follow; they have fired the inspectors general and put a cloud over any audit capability that the government has; and then, you know, building local capacity when you have terminated all the contracts at the country level program, project level, and centralized it back in, in Washington based programs as the primary way to go through large multinational organizations is again, not enabling that future.

Natalie K. Orpett: Okay, so let's switch gears again to talk specifically about this litigation that I've previewed a couple of times. So I'm gonna try to do a very quick recap for our listeners, many of whom will be familiar with the case because Lawfare has been following it very closely.

This is the case AIDS Vaccine Advocacy Coalition, which is consolidated with Global Health Council, so I can't remember what caption it has at the moment. It's in the District of the District of Columbia, and it begins with the Jan. 20 executive order we mentioned that was about reevaluating and realigning U.S. foreign aid. It is followed by implementing memoranda by the secretary of state, among others that put blanket freezes on the distribution of foreign assistance, including humanitarian aid through USAID.

There was a motion for a temporary restraining order that went back and forth and the judge ultimately did grant a TRO that was then appealed to the Supreme Court through the D.C. Circuit and the TRO was upheld with—we have a lot more commentary on that whole process that we've done on Lawfare, so if folks want to go back and check it out, I recommend doing so 'cause that is a very rich thing that I'm skipping over.

The judge in the district court then issued a preliminary injunction, and the subject of this was not to fully reinstate all payments that had been frozen through the implementing memoranda, but to categorize them somewhat—I don't wanna get too into the weeds about which types of payments are now supposed to be going forward and which are not—but suffice it to say that there is definitely a substantial number of payments that USAID had been responsible for, that it had frozen and is now responsible for resuming and having resumed.  There were along the way here a number of discussions in court about whether or not the government was complying with the TRO and now with the preliminary injunction.

So I think where things stand right now is the court had ordered regular status updates, status reports explaining what payments have gone out and which haven't. And the government had protested that it was logistically infeasible to resume payments in the way that the court ordered, so there's, the status reports include a variety of information about that. I think that status is actually due today; we're recording on March 28, I haven't seen it yet.

So I wanna start just to the extent you have a sense right now of where things stand on the resumption of payments and what that's looking like on the ground.

Atul Gawande: Yeah. So, I'll just say a couple of things. The Supreme Court deciding that, you know, just anything to clarify that the back payments for work already done would, in fact be legally required of the government—that was a big deal just because you, you break, you break the government's ability to to contract for payments in the first place if at any time they can simply renege on the deal.

And those back payments, it is being honored; the plaintiffs I've spoken to have largely gotten those funds back. There was some question whether the government would actually adhere to paying the interest payments with it, and then they did. So they did follow through on that.

Now, what they did not address is whether this includes not just the payments for the plaintiffs, but all of the contractors who had back payments owed Those payments for the contractors that were not plaintiffs are going much more slowly, but they are slowly coming, they are coming through. And the status report today is to indicate how much is still remaining for those payments to be processed. There was a certain speed that they'd agreed to, and I think they're hitting that speed expectation, but there's still a lot of owed money.

The bigger question is there's the forward looking work, right? The, there's the, you know, the separation of powers issue and the Administrative Procedure Act around dismantling an entire agency, purging so many staff that work can't be sustained and continued, and terminating contracts en masse—you know, 86% more than 5,000 contracts, 86% of the foreign assistance awards that USAID had in force have been terminated. And that question they did not resolve is expected to be handled in court or perhaps they would ask for summary judgment instead of a trial. And that is one of the fundamental questions.

What I, the way I think of this as a country doctor trying to understand all of this—

Natalie K. Orpett: You're doing exceptionally well.

Atul Gawande: Thank you. Is DOGE had a playbook that they discovered and that they got to practice on USAID to work out how do I purge staff? Well, I start with the probationary employees. I then put their entire civil service, vast majority of it on leave. I terminate all of the contractor staff and and a variety of different lawsuits. The ability to make that happen is really fundamental to, you know, that's one of the mechanisms of, of dismantling an agency.

And then on the payment side, it's whether you can suspend back payments for work done—okay, that got resolved—whether you can simply suspend en masse, all congressionally ordered work. That hasn't been addressed and Rubio State Department got around it by simply terminating contracts en masse. They are alleging that they have gone through the contracts and made individualized decisions on what totals some 6,300 contracts, which is neither credible nor I think there's good evidence that it was not done in an individualized way like the law would require, but that one has, is still working its way through.

And you know, the probationary employees that a court found that they had to return to work and at USAID, they, they've been turned back on, most of them still left on administrative leave. This question whether you can put them on administrative leave may be a tough one; it’s my understanding on a legal side about, you know, if you wanted to put the entire government on administrative leave, could you do that? That is a separate case that Oxfam has joined about turning off the functions, turning off the staff to the point that you can't have the basic functions happen.

And so it's all of these pieces of what does it mean to dismantle an agency and can you do that legally when Congress establishes the offices of government and establishes the appropriations?

Natalie K. Orpett: Yeah, so as you mentioned in the, in the one litigation that we were focusing on with respect to the freezes of payments, you, you referenced the, the sort of two key legal arguments that exist now that the temporary restraining order and the preliminary injunction are at least the remedies in response to those are at least underway and being tracked fairly closely by these status reports.

The issue on the merits for the overall case is these two general claims. You mentioned the Administrative Procedures Act, and I think what you were talking about gets to—I'm gonna get a little legal in the weeds here for our listeners—what you were talking about gets to the question if the Administrative Procedures Act was violated, because the way in which this was done amounts to an arbitrary and capricious manner of taking agency action. So I think we've sort of covered that with, with what you were describing.

Another question is about this argument that the government has that really, this actually shouldn't be understood under the Administrative Procedure Act at all—that, that statute, the question of whether the action was arbitrary and capricious is actually not even at play here because what really happened in the cancellation of these payments is that contracts were changed, were modified, and the government elected to exercise its rights under these contracts and cancel them accordingly.

You know, I, you mentioned that in your view there's not a whole lot of credibility to that, including because of the number of contracts that they allegedly reviewed and how quickly they did it, but you know, it strikes me that you are sort of the perfect person to explain specifically, you know, what are these contracts, what do they look like?  You know, it, it seems frankly in the, the explanation that the government is giving, it's, it's almost like they're suggesting that each and every contract that they canceled included a provision that said something along the lines of, the government can withdraw from this contract with no notice period at any time for any reason.

I deeply suspect that it is inaccurate to say that these contracts include such a provision, but I'm guessing that you have looked at some of these contracts. So tell us what about the contracts lend themselves to that explanation and which are contradictory to that explanation.

Atul Gawande: Well, and I'll, I'll say my main experience comes from terminating contracts myself on the basis of policy change in the, in the previous administration, which can be done nothing like at this scale, right.

You can terminate for convenience, as it's called, but there's a process that's laid out, you know, in regulations about how you go about doing that. Simply sending a, a note saying you are now terminated for convenience is, is not sufficient. You know, you have clinical trials underway with devices left in women that need to be addressed. You have vehicles, you know in parking lots. You have property of the U.S. government and data and other things.

Part of the termination of convenience needs to be a individualized assessment of what are the risks to the U.S. government, the risks to people that need to be addressed. There are always termination payments because you need to have a wind down process. You need to dispose of property, you need to alert people who would be affected.

There are local laws that are, that are required, you know, local staff who are gonna be let go often have three month or six month termination notice clauses that are required. There may be taxes that are owed to the government and the U.S. instructing a company to simply violate the local law and have no provisions to enable that.

None of this happened and, and that is evidence just by itself that there was not an individualized assessment for termination. You also do the math of, you know, 5,800 reviews, none of which were reviewed by technical staff. You, you need to have technical staff involved. It was entirely done on the basis they submitted of a spreadsheet with a single line of a title of the, of the contract and the amount of the award and so on, you know, a single line in a spreadsheet that you have reviewed. I'm suspicious that they did an AI based review and arguing that it was individualized review because you had an AI review it. I would love to see that and see some testimony in court to determine if that was what they had done.

But you know, you need to review material that wasn't reviewed as part of this, actually accessing the statement of work, the content, and every contract is unique for all of those reasons, because you have to go through that. And that takes time. It takes some months and care, and you have to address the risks to the U.S. government for it. You know, in wartime, I suspect you might be in a situation where you have to do something like this, but even there, you need to be able to do some kind of a process for identifying with the ways that people are harmed or U.S. is harmed. And none of that happened, and this of course, was not wartime.

Natalie K. Orpett: Right. So as we wrap up. I think I'd like to hear from you—you know, this litigation is ongoing, reaching the merits of this question is going to take a while, and in the meantime a lot of payments are not happening. So what's gonna be the consequence? What's gonna happen as a result of these payments that had been expected not coming?

Atul Gawande: I mean, the patient has had two legs and an arm amputated and organs in shutdown. At this point, I don't think the law is going to recover what there was. It can't come back remotely like before.

And so what's the purpose? The purpose I think, is above all this is the playbook being used across the entire U.S. government. This is how contracts are being terminated. This is how employees are being purged. This is how shutdown of programs, offices, agencies addressed, you know, that, that have been mandated by Congress.

And so the single most important thing I think that happens in these lawsuits, which will continue to unfold solely, is that, that the lines get drawn clearly about what is appropriate conduct or not, and that that can stop more damage being done, whether it's $12 billion cut out of the public health system for the United States yesterday. You know, as we're speaking about this, the exact same approach taken to 10,000 more employees being let go as of this morning at Department of Health and Human Services that damage major parts of the ability of the Health and Human Services organization to function. Like that's absolutely critical.

USAID is about 13,000 people. Many of them have had to move on in this time, and you don't just get them back. Many, many would come back if it could get turned on, but then there's hundreds of thousands of people in the field through contractors, on awards, doing work who've now long been terminated, and rebuilding that capacity is years in the making.

This, you know, is important to win. I hope it will continue to establish that the functions of USAID need to live on because it's essential to our national security for all the reasons we talked about, and hopefully gives a mechanism where it can be gradually or quickly rebuilt, but nothing like it was before.

But the ability of the courts to rescue what is a massive loss of life happening as we speak—I mean, 20 million people with HIV who have received life-saving medications 'cause of the United States and now have gone without for two months. In three to five weeks, the HIV levels return, so you know. And there were stocks on hand, so some of these, you know, are, are getting it in other ways, but there is just that alone.

And I, I can go on down the list. The harms are terrible and we're gonna be dealing with the consequences of that worldwide as well as in the United States.

Natalie K. Orpett: All right, I think we're gonna have to leave it there. Atul Gawande, thank you so much for joining us.

Atul Gawande: Thank you.

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