It has now been nearly five and a half years since the start of the COVID-19 pandemic.
Although the pandemic led to approximately 28 million excess deaths, hundreds of millions of lives shattered, and tens of trillions of dollars in economic damages, little progress has been made toward holding the Chinese government responsible for its actions which — far more than anything else — helped spark this otherwise avoidable pandemic. In that time, China’s government has done everything possible to prevent any meaningful investigation into the origins issue.
In light of this obfuscation, the time has come for America and the international community to hold China’s government accountable its malfeasance. Our specific and narrowly tailored plan for doing so is outlined below, along with proposed implementing legislation.
To help prevent future pandemics, Congress must pass this legislation as quickly as possible and send it for the President’s signature. For their own self-interest, and regardless of legitimate concerns about current actions being taken by the United States government, other countries should follow suit.
Personal background:
I have been raising questions about the origins of COVID-19 and calling for a full investigation into the origins issue since early 2020. I began my media outreach in March 2020, launched my origins website and significantly ramped up my public outreach in April 2020, published my first Wall Street Journal editorial in July 2020, and then in August 2020 released another editorial calling for a 9-11 style bipartisan commission. I have done many hundreds of media interviews, led the drafting of multiple expert open letters that were covered by most major media globally, engaged in extensive outreach to government officials and journalists across the globe, among many other efforts. In March 2021, Leslie Stahl and 60 Minutes did a major segment on this work and in March 2023, I was the lead witness in the first Congressional hearings on COVID-19 origins. I also served as the lead Democrat in the nonpartisan Commission on China and COVID-19 that was coordinated by the Heritage Foundation (current CIA Director, John Ratcliffe, then a private citizen, was the lead Republican and Chair). For my sins, I had the honor of being condemned by name by the spokesman of the Chinese foreign ministry from the ministry’s podium in Beijing.
The reason I have pushed so hard, in conjunction with some true heroes such as colleagues in the “Paris Group,” DRASTIC, and others (see this Vanity Fair piece) across the globe, is that I believe COVID-19 was an entirely preventable, political pandemic. But for the unique pathologies of the Chinese state, there very likely would have been no pandemic at all. Although the available evidence in my view strongly supports the research-related origin hypothesis (for reasons I lay out here, Matt Ridley lays out here, and Alina Chan lays out here), China’s responsibility for sparking the pandemic holds regardless of whether the pandemic stems from a lab accident followed by criminal obfuscation, suppression, and malfeasance or if, however unlikely, it results from the illegal wildlife trade followed by criminal obfuscation, suppression, and malfeasance.
I have been a liberal and an advocate for social justice and human rights my entire life. While I respect the urge to let bygones be bygones and focus on promoting mutual understanding between the United States and China, particularly at this moment of historic divisiveness and danger, doing so would be a betrayal of our best values and set the stage for even worse pandemics in the future. While I strongly believe the United States should not leave the WHO and instead work to improve and empower it, that the world community must negotiate a new pandemic treaty capable of actually preventing future pandemics, and that responsible international collaboration is essential to the best possible future of science and of humanity, giving China a free pass on sparking a totally avoidable pandemic that has led to 28 million excess deaths, hundreds of millions of lives shattered, and tens of trillions of dollars of economic losses would only encourage China or any authoritarian state to follow China’s playbook next time.
Imagine you are a Chinese bureaucrat or local official facing the exact same circumstances as in Wuhan in late 2019 and early 2020. If you do what the Chinese government actually did and destroy samples, hide records, lie to the WHO and world, imprison journalists asking the most basic questions, prevent scientists from sharing essential information or speaking up, and aggressively block any meaningful international access or investigation, you are doing exactly what your government successfully did to avoid responsibility and accountability for COVID-19. If you are open and transparent and do the right thing, you are committing treason against your country.
Because holding China accountable for its irrefutable malfeasance is so essential to preventing the next pandemic, doing so is among the greatest humanitarian acts we can take. The essential question is how.
Next Steps:
Here is how John Ratcliffe and I described what we believe the US government must do in our July 2024 Newsweek editorial:
Establishing liability is an essential tool for fostering accountability in any functioning domestic legal system. The same principle can be applied appropriately in the international context. But while America’s Foreign Sovereign Immunities Act (FSIA) provides a limited path forward for potential plaintiffs, the bar for these types of actions remains dauntingly high.
This restrictiveness makes sense in normal circumstances and helps prevent international chaos. But these are not normal circumstances. Our world remains dangerously and unnecessarily at risk for future pandemics because we’ve collectively failed to establish accountability for the last one.
Congress can fix this problem with a single-paragraph amendment to the FSIA. Republicans and Democrats should work together to ensure that U.S. federal courts are granted jurisdiction over cases where injured American citizens are seeking monetary damages against a foreign state, with the important caveat that the foreign state must have directly through malfeasance or indirectly through negligence sparked a pandemic leading to over a million excess deaths in America and failed to carry out or allow a comprehensive and unfettered investigation.
The day our nonpartisan Heritage Foundation commission report was released, some of the other commissioners and I met with a small group of Senators, both Republican and Democrat, to share our 18 recommendations, with a particular focus on our by far most significant idea. The senators asked us to draft specific language for a bill amending America’s Foreign Sovereign Immunities Act in the way we recommended.
In response to that request, I brought together a small drafting team in which I was joined by three superstars: Gary Osen, a trial lawyer who is America’s leading practitioner of holding bad actors responsible through the FSIA, David Feith, a former Deputy Assistant Secretary of State, and Dore Feith, an astoundingly precocious budding expert in FSIA law. In consultation with additional specialists, we developed the draft legislation below. Although this draft is currently with the Senate Judiciary Committee, we are officially releasing it to the public today. It is our hope that this legislation will pass in Congress and be sent for the President’s signature as quickly as possible.
As we enter our new age of synthetic biology (which you can learn more about in my new book), our world becomes ever-more connected, the interactions between wild and domesticated animals increases, and our planet warms, the odds of major pandemics are increasing. Shame on us if we don’t learn all of the lessons of COVID-19, including with regard to prevention, origins, response, and much else.
Holding China fully responsible for its clear and completely unacceptable malfeasance must be an essential component of that process. Passing this legislation while leaving no other stones unturned regarding all actions, including our own, is America’s best way of realizing this essential goal.
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Draft Legislation:
An act to provide accountability for causing or aggravating global pandemics.
Section 1. Short Title.
This Act may be cited as the “Pandemic Accountability Act of 2025.”
Section 2. Findings and Purpose.
(a) Findings.—Congress finds the following:
(1) COVID-19 was the deadliest pandemic in a century, both globally and in the United States;
(2) The recklessness and malfeasance of the Chinese government played a central role sparking the pandemic. While there is some debate about how the initial spillover occurred in Wuhan, China in the fall of 2019, both the research-related origin hypothesis and the Huanan market origin hypothesis strongly infer negligence and malfeasance by Chinese authorities. Further, there can be no doubt that actions taken by the Chinese government to suppress information and actively mislead the international community prevented the type of response that could likely have prevented the entire COVID-19 pandemic;
(3) China’s active, ongoing, and persistent efforts to prevent any meaningful investigation into COVID-19 origins critically impaired processes for preventing future pandemics;
(4) In addition to the estimated 28 million excess deaths globally, including over one million in the United States alone, China’s efforts to suppress COVID-19 origins put all people and future generations at far greater risk than would otherwise be the case;
(5) The International Health Regulations impose standards of ordinary care on all signatories, including: to report to the World Health Organization (WHO), within 24 hours of making the public health assessment, “all events which may constitute a public health emergency of international concern within its territory” and to provide timely, accurate, and detailed information about the disease.
(6) China failed to live up to its obligations under the IHR in the context of the COVID-19 pandemic and that this failure caused significant harm to America and the world;
(7) Recognizing that a standard of transparency and accountability can prevent future pandemics, Americans should be able to hold to account the foreign states responsible for causing or substantially aggravating such pandemics through their reckless acts and omissions;
(8) Global pandemics affect the interstate and foreign commerce of the United States by harming international trade and market stability, disrupting global supply chains, and limiting international travel to and from the United States;
(9) The United States has a vital interest in providing persons or entities injured in global pandemics with full access to the US court system in order to pursue civil claims against foreign persons, entities, or countries that have knowingly or recklessly acted or failed to act in a manner that substantially aggravates the effects of such pandemics.
(b) Purpose.—The purpose of this Act is to lift sovereign immunity in a narrow set of circumstances in order to provide American victims of global pandemics a basis to seek relief against foreign states, and any official employees or agents of those foreign states, that knowingly or recklessly act or fail to act in a manner that substantially aggravates the effects of global pandemics.
Section 3. Global Pandemic Exception to Immunity.
(a) In general.—Chapter 97 of title 28, United States Code, is amended by inserting after section 1605B the following:
Ҥ 1605C. Global pandemic exception to the jurisdictional immunity of a foreign state
“(a) In General.
“(1) The outbreak of COVID-19 resulted in a global pandemic.
“(2) No Immunity. A foreign state shall not be immune from the jurisdiction of courts of the United States in any case in which money damages are sought against that foreign state for any knowing or reckless act or omission of that foreign state, or of any official employee, or agent of that foreign state, that substantially contributed to the spread of a global pandemic that caused physical injury, economic injury, or wrongful death, regardless of where the action or omission occurred.
“(2) Claim Heard. The court shall hear a claim under this section if the claimant or the victim was a United States person at the time the act described in paragraph (1) occurred.
“(b) Limitations. An action may be brought under this section not later than 10 years after the date of claimant’s injury.
“(c) Private Right of Action. A foreign state or any official, employee, or agent of that foreign state while acting within the scope of his or her office or employment shall be liable to:
“(1) a national of the United States, or
“(2) that person’s legal representative, if deceased, or
“(3) a U.S. person not covered by subsections (1) or (2) above
“for personal injury, economic injury, or death caused by the global pandemic, where acts or omissions described in subsection (a)(2) substantially contributed to its spread. In any such action, damages may include economic damages, solatium, and pain and suffering. In any such action, a foreign state shall be vicariously liable for the acts of its officials, employees, or agents.
“(d) Service of Process. Notwithstanding the provisions of section 1608, service in the courts of the United States and of the States can be made, for claims brought under this Act upon a foreign state or political subdivision of a foreign state, by delivery of two copies of the summons and complaint, as well as a certified translation into an official language of that foreign state, by any means the court determines is reasonably calculated to give actual notice to that foreign state, including by service on the United States embassy of that foreign state.
“(e) Additional Damages. After an action has been brought under subsection (c), actions may also be brought for reasonably foreseeable property loss, whether insured or uninsured, third party liability, and loss claims under life and property insurance policies, by reason of the same acts on which the action under subsection (c) is based.
“(f) Stay.
“(1) In General.—A court of the United States may stay a proceeding against a foreign state if the Attorney General, after consulting with the Secretary of State and Secretary of Health and Human Services, certifies that:
“(A) the United States is engaged in good faith discussions with the foreign sovereign defendant concerning the resolution of the claims against the foreign state, and
“(B) the foreign sovereign defendant has demonstrated significant progress toward permitting an outside party that the Secretary of Health and Human Services deems reliable to conduct a comprehensive and unfettered scientific and forensic investigation into the global pandemic’s origins and spread.
“(2) Duration.—
“(A) In General.—A stay under this section may be granted for not more than 180 days.
“(B) Extension.—
“(i) In General.—The Attorney General may petition the court for an extension of the stay for additional 180-day periods.
“(ii) Recertification.—A court shall grant an extension under clause (i) if the Attorney General recertifies the certifications required in subsection (1).
“(iii) Limit on Extensions.—A court shall not grant more than three extensions under this subsection unless the Attorney General provides new evidence that the United States continues to engage in good faith discussions with the foreign sovereign defendant concerning the resolution of the claims against the foreign state, and new evidence is provided certifying that the foreign sovereign defendant has demonstrated serious, concerted, and ongoing efforts to allow a comprehensive and unfettered scientific and forensic investigation into the origin of the pandemic.
“(g) Property Disposition.—
“(1) In general.—In every action filed in a United States district court in which jurisdiction is alleged under this section, the filing of a notice of pending action pursuant to this section, to which is attached a copy of the complaint filed in the action, shall have the effect of establishing a lien of lis pendens upon any real property or tangible personal property that is—
“(A) subject to attachment in aid of execution, or execution, under section 1610;
“(B) located within that judicial district; and
“(C) titled in the name of any defendant, or titled in the name of any entity controlled by any defendant if such notice contains a statement listing such controlled entity.
“(2) Notice.—A notice of pending action pursuant to this section shall be filed by the clerk of the district court in the same manner as any pending action and shall be indexed by listing as defendants all named defendants and all entities listed as controlled by any defendant.
“(3) Enforceability.—Liens established by reason of this subsection shall be enforceable as provided in chapter 111 of this title.
“(h) Definitions. For purposes of this section,—
“1) the term ‘global pandemic’ shall include the COVID-19 pandemic and means a worldwide pandemic in which a biological agent was the causative agent, directly or indirectly, of more than 1,000,000 excess deaths in the United States, as determined by the Secretary of Health and Human Services.
“2) the term “reckless” means unreasonable conduct involving not merely simple, or even inexcusable negligence, but extreme departure from standards of ordinary care.
“3) the term ‘United States person’ has the meaning given that term in section 6010 of title 22.
(b) Execution Of Judgments.––Section 1610 of title 28, United States Code, is amended—
(1) in subsection (a)(7), by striking ‘‘section 1605A or section 1605(a)(7) (as such section was in effect on January 27, 2008)’’ and inserting ‘‘section 1605(a)(7) (as in effect on January 27, 2008), 1605A, or 1605C’’; and
(2) in subsection (b)(3), by striking ‘‘by virtue of section 1605A of this chapter or section 1605(a)(7) of this chapter (as such section was in effect on January 27, 2008)’’ and inserting ‘‘under section 1605(a)(7) (as in effect on January 27, 2008), 1605A, or 1605C”;
(3) in subsection (g)(1), by inserting “or section 1605C” after “1605A”; and
(4) in subsection (g)(2), by inserting “or section 1605C” after “1605A”.
(c) Applicability.—This Act shall apply to any claim that arises on or after January 1, 2019.
(d) Severability.—If any provision of this section or the amendments made by this section, or the application of such provision to any person or circumstance, is held invalid, the remainder of this section and such amendments, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected by such invalidation.