SEARCH, SENTENCE, AND (DON’T) SELL: COMBATING THE THREAT OF BIOLOGICAL WEAPONS THROUGH INSPECTIONS, CRIMINALIZATION, AND RESTRICTIONS ON EQUIPMENT * T IMOTHY K. G ILMAN Table of Con tents I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 II. THREAT ASSESSMENT . . . . . . . . . . . . . . . . . . . . . . . . . 219 A. Typ es of A gents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 B. Type s of Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 C. The Current Threat . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 III. THREAT RESPONSES . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 A. The 1972 B ioweapons Convention . . . . . . . . . . . . . . . 233 B. Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 C. Restrictions on Equipment . . . . . . . . . . . . . . . . . . . . . 240 D. Criminalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 IV PROPOSALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 A. BW C Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 B. Bush Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 C. Harvard Sussex Plan . . . . . . . . . . . . . . . . . . . . . . . . . . 249 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 I. I NTRODUCTION Biological weapons represent a significant threa t to the security and health of the United States and the rest of the w orld. Natura lly occurring biological ag ents, such as smallpox, hav e been re spon sible for hundreds of millions of deaths over the last century. Advances in biotechnology have created the poten tial to m ake these agents even more dan gerous. The potential damage from a large-scale attack using sophisticated bioweapons is incalculable. In 1972, the Convention on the P rohib ition of the D evelopm ent, Production and Stockpiling of Bacteriological (Biological) and Tox in Weapons and on their Destruction (“Biological Weapons Convention” or “BWC ”) was formed to combat the threat of 1 bioweap ons. Although m any states h ave ratified th e agreem ent, * J .D . candida te, Georgetow n U niversity Law C enter (May, 2003); M.P.H. candidate, J o h n s Hopkins S chool of Public Health (May, 2003); A.B. Chemistry, Princeton University (199 8). The author would like to express his sincere gratitude to Professor John Podesta, who advised him on this article. 1. Convention on the Prohibition of the Development, Production and Stockpiling of 217 218 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 the BWC has done little to combat the development of bioweapons by state and n on-state actors. This failure has bee n larg ely attributed to the lack of an adequate enforcement mechanism for the BWC. Three types of solutions have been proposed to this lack of enforcement mechanism: inspection regimes; equipment restrictions; and crim inalization. Inspection regimes w ould force both pub lic and private facilities to submit to decla ration requirements and inspe ctions o f their capabilities in addition to their poten tial involvement w ith bio weapons. Equipment restrictions would attempt to comb at the risk by limiting access either to the m icroorganisms the mselves or to the sophisticated equipment needed to develop and weaponize the age nts. Crim inalization wou ld attempt to target those actors wh o are developing bioweapons, either throu gh domestic legislation or international recognition of bioweapons as a universal crime. Three proposals have been advanced w hich incorporate various aspects of these solutions. The BWC Ad Hoc Group (“BWC proposal”) has advocated an inspection regime modeled on the Chemical Weapons Convention (“CW C”) and has also recognized the potential value of criminalization. The Bush administration, after rejecting the BWC inspe ction proposal, has advocated dom estic criminalization by all members of the BWC and equipment restrictions. And, the Harvard Sussex Program has advocated universal criminalization of bioweapon s. Each of the proposals has advantages and drawbacks. The BWC proposal would be the best at reaching state actors, but its potential efficacy is question able and conce rns have been raised regarding national security and threats to proprietary inform ation du ring inspections. The Bush proposal is d esign ed to address the threat of non -state actors, but its criminalization approach has proved largely ineffectual in the United States where its restriction on equipment has proved difficult to implement. The criminalization of the Harvard Sussex approach would be more effective than the Bush administration’s criminalization, but it w ould likew ise fail to reach state actors. In order to create an effective tool for combating bioweapons, elem ents from all three proposals would be needed. The various threa ts that both state and non-state actors pose must be addressed through effective mechanisms. While no approach would be completely successful, any substantial reduction in the threat and Biological and Toxin W eap ons a nd on their De str uct ion , opened for signature Apr. 10, 1972, 26 U.S.T. 583 (entered i n force M ar. 2 6, 1 97 5), ava ilable at http://disarmam ent.un.org/ Trea tySt atus .nsf (last v isited F eb. 17 , 2003 ). Spring, 2003] COMBATING THE THREAT 219 proliferation of bioweapons would be of immense benefit to the United States and the rest of the world. II. T HREAT A SSESSMENT “‘[T]he tragedy of September 11 was nothing like what might be possible with biological weapon ry.’” - Bill Joy, Chief Scientist of Sun M icrosystems, on the 2 potential of biotechnology to develop devastating weaponry. In determining the best response to the threa t of biow eapons, it is important to initially establish what actual threat is posed. First, this section will identify the potential agents and their relevant characteristics tha t would be used . Second, this section will analyze the historic uses of bioweapons by states and non-state groups to determine the type of actor, the associated type of agent and the kinds of uses. Third, this section will evaluate the current types of actors and the th reats th at they represen t. Finally, this section will conclude with an overall assessment of the risk created by bioweap ons from both state and non-state actors. A. Types of Agents Although there are literally thousa nds of potential biological 3 agents that might be used, a num ber of specific organisms have been identified as important in considerin g the large probability that they would be used, or the risk of extreme harm that could result, if they were used. Althou gh anthrax has attracted the most 4 recent publicity, a recent symposium of scientists and pub lic hea lth professionals have also identified smallpox, plague, and botulinum 5 toxin as potential threats. These agents also appear as the m ost dangerous threa ts on the critical agents list of the Center for Disease Control (“CDC ”), as well as hemorrhagic fevers such as 6 Ebola and M arburg. 2. Bioweapons: A Potential Threat of Ma ss Destruction, T HE H INDU, Oct. 31, 2001 [he rein aft er B iow ea po ns ], available at 2001 WL 28477849. 3. U S Representative Christopher Shays Holds Hearing on Biological Terrorism, F D C H P OL. T RANSCRIPTS, Oct. 12, 2001 [hereinafter H earings] (testimony of Ken Alibek, a.k.a. Kana t j an A libekov, former deputy head of Biopreparat, the Soviet Union’s bioweapons pro gra m , an d P res ide nt o f A dv an ced Bi osy ste m s, In c.), available at 2001 WL 26187096. 4. See, e.g., Anthrax Investigation—A ward Increased , Press Release, FBI, (Jan. 23, 2002) [hereinafter FB I], available a t http://newark.fbi.gov/pressrel/2002/pr012302.htm (offering rewa rd of up to $2 .5 m illion for infor m ation on rece nt an thrax atta cks). 5. Da vid H . Fr an ke l, US Expe rts Take the Th reat of Biot errorism Serio usly , T HE L ANCET, Fe b. 2 7, 1 99 9, at 734. 6. Ali S. K ha n e t al ., Public-health Preparedness for Biological Terrorism in the USA , T HE 220 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 These potential agents can be divided in three categories. The first group inclu des common a gents, which are organisms that are relatively ubiquitous in the environment and can be cultured and stored with relative ease. The secon d group in cludes exotic agents, which include extrem ely rare, or difficult to cultu re, agents and to create weaponized forms of common agents. And the third group includes smallpox, which is treated separately due to its extreme rarity and enormous potential for inflicting hum an casualties even in a n u nw eaponzied form . 1. Common A gents Com mon agents include bacteria, such as anthrax and plague, and biotoxins, such as botulinu m toxin a nd ricin . The se agents are relatively common in nature and relatively easy to culture as compared to other possible agents. While these agents can be extremely lethal, they are n ot likely to cause widespread harm due to the lack of person-to-person transmission, the availability of treatments, and the difficultly in delivery. Exam ples include: Anthrax: Anthrax, or Bacillus anthracis, is a 7 ubiquitous bacterium found throughout the world. Although more common in te m perate clima tes, it is 8 also found in the U nited States. The bacterium is fairly easy to culture, but would not grow we ll in 9 quantity without sophisticated fermenter equ ipm ent. Although the spore form of the bacteria is highly stable in the environmen t, its physical properties 10 make it difficult to aerosolize. An thrax is also not L ANCET, Sept. 30, 20 00 , at 1179. The Pa n Am erican Health Organization also lists anthrax, sma llpox, plague, botulism, and hemorrhagic fever viruses as likely bioweapon agents. Pan American H ea lth Or ga niz at ion , Intentional U se o f B iolo gica l an d C he m ica l A gen ts: Risks and Recom mend ations, at http://www .paho.org/English/S HA /be_v22n 3-bioterrorism .htm (S ept. 200 1) (on file w ith au thor). 7. The disease generally preys upon grazin g anim als su ch as shee p an d goa ts. Da vid T ell, All About Anthrax; Everything You Didn’t Wa nt to Know , W KLY. S TANDARD , Oct. 29, 2001, at 29 (d escribi ng his tor ica l an d cu rre nt i nci de nts of a nth rax ); B arr y K ellm an , Biological T erro ris m : Legal Measures for Preventing Catastrophe, 24 H ARV. J.L. & P UB. P OL’Y 417, 433- 34 (2001) [he rein aft er K ellm an , Biological Terrorism] (detailing key features of anthrax and other agents). For a general description of anthrax, see CD C F act Sheet on An thrax, ava ilable at http://ww w. cdc.go v/ncidod /dbm d/ disea seinfo/a nthra x_t.htm (last vis ited D ec. 13, 20 02). 8. In the early twentieth century, there were over 100 human cases of the disease rep ort ed ea ch y ea r in the U nit ed St at es. T ell, supra note 7, at 29. 9. Ke llm an , Biological Terrorism, supra no te 7 , at 4 59 . 10. See Pa n A m eric an H ea lth Or ga niz at ion , supra note 6 (evaluating biological agents that might be us ed as we ap on s); K ellm an , Biological Terrorism, supra note 7, at 458 (sam e); Rick Weiss & D avid E gge n, Additive Ma de Spores Dea dlier, W ASH . P OST , Oct. 25, 2001, at A01 (stating that only the United States, Russia, and Iraq have the capability of producing the Spring, 2003] COMBATING THE THREAT 221 11 contagious from infected individuals. Inhalation anthrax infections are almost always fatal if not 12 treated before the onset of symptoms. Plague: The plague, or Yersinia pestis, is infamous for wip ing out one-quarter of Europe’s population 13 during the Middle A ges. Like anthrax, it is found natu rally in an imal populations worldwide and 14 within the United States. There are generally ten to fifteen documented cases of plague in the United States each year, and an estimated 1,000 to 3,000 15 worldwide. It is highly comm unicable person-to- 16 person, but somewhat difficult to grow in culture. Botulinum Tox in: Botulism , or Clostridium botulinum toxin, is different from the above agents in that it is a biochemical compound rather than a 17 18 reproducing organism. It is extremely toxic; how ever, it is difficult to deliver to large populations, 19 and w ould not reproduce like other agents. Ricin: Also a potent biotoxin, ricin can easily be 20 isolated from castor beans. It is extremely tox ic through dermal exposure, and has been used m ainly in assassination attempts, such as by coating the tip of an um brella and ma king contact w ith exposed 21 skin. Sim ilar to botulin um toxin, it is difficult to wea pon ized for m of ant hrax used in recen t atta cks). 11. Meryl N as s, Biolo gical W ar f are, T HE L ANCET, Aug. 9, 1998, at 491 (analyzing key featu res of a nthra x). 12. Fact Sheet on An thrax, supra note 7. The re are natu ral a nd engineered strains of an thr ax tha t ar e re sis ta nt t o a nti bio tics . N as s, supra no te 1 1, a t 49 2. 13. Scott Ke efe r, International Control of Biological Weapons, 6 ILSA J. I NT’L & C OMP. L. 107 , 113 (1 999 ). 14. Ke llm an , Biological Terrorism, supra no te 7 , at 4 34 -35 . 15. C D C , Plague Hom e Page, at http://www.cdc.gov/ncidod/dvbid/pla gue/index.htm (last visited Jan . 23, 20 02). 16. Ke llm an , Biological Terrorism, supra no te 7 , at 4 35 . 17. Botulinum toxin is the only non-replicating agent in the t op six biological agents that are threats to civilians. Robert Schechter & Stephen A rnon, Extreme P otency of Botulinum Tox in, T HE L ANCET, Jan. 15, 2000, at 238. 18. The LD 5 0 , o r d os e n eeded to kill 50% of animals in laboratory testing, is 0.4 ng/kg. E xtrapo lating from this data, one ounce, if evenly distributed, could kill over one million pe op le. Id. 19. See id. 20. Ke llm an , Biological Terrorism, supra no te 7 , at 4 36 . 21. Id. at 4 42 . 222 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 deliver to large pop ulations, an d would not reproduce once delivered. Because of their availability, common agents represent the most likely agent to be used in a bioweapons attack. They are fairly easy to acqu ire and produce, but are difficult to de liver as part of a widespread attack. They ma y also be useful in attacking individua ls or small groups but are not suited to causing widespread harm. Apart from the psychological response these weapons may elicit in the public, they are far less effective and more expensive 22 than conven tional weapon s. 2. Exotic Agents Exotic agents are much more difficult to acquire and develop than com mon agents because they can be relatively rare, difficult to culture, and requ ire sophisticated eq uipm ent an d expertise. This category includes some viral agents, such as the hemorrhagic fevers and weaponized forms of other agents. Exam ples include: Hemorrhagic Fevers: Viruses such as Ebola and 23 Ma rburg can be highly infectious and fatal. They have the potential to spread within a population after an initial attack and cause widespread harm. Howev er, they are very rare in the environment and can be found only in limited geographical areas 24 during outbreaks. These viruses are also difficult to culture and would be difficult to deliver in an initial attack. Weapo nized Com mon A gents: Soph isticated engineering may be able to reduce the limitations of the common age nts described above. Possib le modifications include m echa nical e ngin eering to 25 improve the delivery of these agents and 22. See Hearings , supra note 3 (testim ony of Ra ym ond D ecker, director of the D e f en se Ca pab ilities M ana gem ent T eam for the U nited Sta tes G enera l Acco untin g Office). 23. See Ke llm an , Biological Terrorism, supra note 7, at 435-36 (describing the cha rac ter ist ics o f th ese ag en ts) . 24. See C DC , Vira l Hem orrhagic Fevers: Fact Sheet , ava ilable at http://www .cdc.gov/ ncido d/dvrd /spb/m npa ges/dis pag es/vhf.htm (last vis ited J an. 23 , 2002 ). 25. See H earings, s u p ra note 3 (testimony of Dr. Kenneth Alibek, former deputy head of Bioprep arat, the Soviet Union’s bioweapons p ro gra m , and President of Advanced Biosystems, Inc.). Spring, 2003] COMBATING THE THREAT 223 bioengineering to improve the in nate characteristics or to develop resistance to m edical treatm ents. Bioengineered A gents: New agents ma y continue to emerge as potential threats. In January 2001, Australian scientists reported that they had 26 accidentally created a virulent strain of mousepox. As biotechn ology continues to evolve, more sophisticated biotoxins, such as interference RNA, 27 may emerge as novel biow eapons. Although any threat from such designed bioweapons would not likely ma terialize in the nea r future , it may be important to keep such sophisticated weaponry from being developed. Exotic age nts represent a more serious threat than common agents. These agents could be high ly infectious a nd sp read quick ly through a popula tion . For many of these agents there are no effective treatments. An attack using such weapons could affect a far larger population and cause greater damage than an attack using common agents. However, they are more difficult to acquire, culture, and use, and they ma y require significant facilities to develop. Therefore, it is likely that only soph isticated actors w ith significant resources would have access to exotic agents. 3. Smallpox Smallpox, or Variola major, is included in a separate category because of its uniq ue chara cteristics. It is similar to common a gents 28 29 in that it is easy to culture. Because it is hig hly contagious, even 30 simple delivery mech anisms could lead to widespread casualties. 26. Richard Ing ha m , M iracle of Biotech Could Also Breed a M onster, A GENCE F R . P RESSE , Oct. 23, 2001. 27. R N A i cou ld b e d esi gn ed to in act iva te a sp ecif ic ge ne wi thi n a ho st. Bioweapons, supra note 2. 28. 60 Minutes: Sm allpox (CBS television broadcast, Oct. 1, 2000) (M ike W allace repor ting), available at 2000 W L 42 1297 7 [hereinafter 60 M inutes] (noting that it is poss ible to produce s ubsta n t ia l q u a n tities of smallpox by simply inoculating a chicken egg with the virus a nd th en ha rvestin g a w eek la ter). 29. In some outbreaks, infected individuals have each infected over ten other people . D onald A. H en de rso n, Sm allpox: Clinical and Epidem iological Features, E MERGING I NFECTIOUS D ISEASES (Ju ly-A ug . 19 99 ), at 53 7, available at http://w w w .c d c. go v /n ci do d /E I D / vol5no4/hen derson.htm (last visited Feb. 17, 2003). For a general backgroun d o n s m a llpox, see W orld H ea lth Or ga niz at ion , Sm allpox Fa ct S heet, ava ilable at http://ww w.pa ho.org/E nglish /DPI / pr01 102 2.htm (last vis ited F eb. 17 , 2003 ). 30. The virus k ills abo ut on e-third of its vict i m s a n d is believed to have caused 5000,000,000 deaths in the twe ntieth cen tur y. 60 M inutes, supra note 28. Once Cortez’s crew 224 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 It is similar to exotic agents in that it is extremely difficult to acquire. It is believed that the virus has been eradicated in nature, with two remaining samples stored in the United States and 31 Russia. Howev er, many reports exist that samples of the virus 32 now exist in other locations. Although a vaccine for smallpox exists that can be effective up to five days after infection, routine vaccinations in the Un ited Sta tes ha ve not occurred for o ver tw enty years. Currently, an insufficient supp ly of vaccine e xists to protect 33 the public. Smallpox may be the most dangerous bioweapon. It could be capable of producing a worldwide catastrophe with fatalities reaching into the hu ndreds of m illions in an unw eaponized form with a simple delivery mechanism. Two major restrictions on the use of smallpox as a weapon exist. First, it is extremely difficult to acquire. Second, any use of smallpox would likely lead to a pan dem ic tha t would affect every nation , including the state (or home of the non -state group) that initially released the virus. Therefore, it is unlikely that a rational actor would use such a weapon. 3. Conclusion This division of agents into three categories is useful for evaluating the type of actor who would use a given agent and the type of threat that they present. Unso phisticated actors would be more likely to use common agents, which do not represent as serious a threat as the other agents. On the other hand, sophisticated actors might be able to develop and use exotic agents, which represent a greater threat. W hile smallpox is perhaps the greatest threat, it is likely tha t on ly a few state actors possess the virus. introduced the virus into the virgin Aztec population, it is estima ted to have killed 3.5 million Aztecs in two years. Jamie Talan & Lia m Ple ven , America’s Ordeal, N EWSDAY , Nov. 6, 2001, at A04. 31. T h e two official stor age s ites ar e the C DC in A tlanta and the V ector fa cility in Novosibirsk, Russia . S h ann on Br ow nle e, Clear and Present D anger, W ASH . P OST , Oct. 28, 2001, at W 0 8 . T here ha ve b een no rep ort ed cas es o f sm all po x si nce 19 77 . Id. While both of these sam ples were slated for destruction, this has been postponed due to fear that there may be oth er s am ple s of the viru s in exi ste nce . H en de rso n, supra no te 2 9, a t 53 8. 32. See, e.g., Br ow nle e, supra note 31, at W08 (listing countries suspected of having sm allpo x w ea po ns pro gra m s); Hearings , supra note 3 (sam e). 33. See Ta lan & Ple ven , supra note 30, at A04. Spring, 2003] COMBATING THE THREAT 225 B. Types of Actors Having identified the agents that may be u sed as biowea pons, it is important to identify the types of actors that would utilize these agents, what resources they would have and n eed, their motivations for using bioweapons, and what agents they would be likely to use. The potential users of such weapons could be broadly broken down into state and non-state actors. First, past uses of bioweapons by both state and non-state actors will be exam ined. Second, this information will be applied to mo dern actors to evaluate their potential for use of bioweapons 1. Historic Use s by State Actors “‘[Y]ou will do well to try to inoculate the Indians by means of the blankets, as we ll as to try every other m ethod that can serve to extirpate this execrable race.’” - Orders to B ritish troops in 1 763 to deliver blanke ts 34 contamina ted with sma llpox to Native Am ericans. 35 The use of biow eapons by states dates back over 2,500 years. Mo dern use of bioweapons began during Wo rld Wa r I, when German soldiers infected livestock exports bound for A llied nations with 36 anthrax and glande rs. Between W orld War I and World W ar II, the infamous Unit 731 of Japan conducted widespread work on 37 bioweapons in occupied Manchuria. World War II saw man y other 38 39 nations involved in both widespread and individually targeted 34. Ke efe r, supra note 13, at 113. 35. Ancient Athenians used toxic plants to try to poison the water supplies of other cities as ea rly a s 6 00 B.C . Id. at 112-113. In 1346, Mongols besieging the Crimean c i ty o f C a ffa catapulted plague infested corpses into the city. When fleeing civilians brought the disease to E u ro pe , i t s ta rt ed a n e pi de m ic th a t k il le d o ne -q u ar te r o f E urope’s p op ula tio n. Id. at 113. During the A m erican Civil War, fleeing Confederate soldiers drove animals into ponds and sh ot t he m in a tte m pts to c on ta m ina te t he wa ter su pp ly fo r ad va nci ng U nio n fo rce s. Id. 36. Id. Te ll, supra note 7, at 29. 37. Thousands of C hin ese we re k ille d d uri ng 19 32 -19 45 . Id. at 2 9 . T he Japa nese w ere alleged ly working on plague, cholera, and typ ho id. K eef er, supra note 1 3, at 1 14. D uring t his period, Belgium, France, Canad a, Great Britain, Italy, the N eth erlands, Poland, and the So vie t U nio n w ere als o d eve lop ing bio we ap on s p rog ram s. Id. 38. For example, Britain prepared 5,000,000 “cattle cakes” laced with anthrax for an anticipated “O pe rat ion Ve get ari an ” ag ain st G erm an y. T ell, supra note 7, at 29. By 1944, the United States had p r e p a re d 5,0 00 an thr ax bo m bs tha t w ere ult im at ely no t de plo yed . Id. Japanese forc es r ele as ed pla gu e-in fes ted flea s d uri ng con flict s in M an chu ria . Bioweapons, supra note 2. In 1942, Russia deployed pneumonic tularamia in an attempt to halt advancing Nazi forces. J ack W ood all , The Soviet Biowea pons Program me: An Insider’s View , T HE L ANCET, Oct. 30, 1999, at 1568. 39. In 1 9 42 , t he B ritish secret service used botulinum toxin to assa ssinate R einhard Heydrich, the presumed successor to Hitler. Al exa nd ra W itz e, Biological Warfare No Longer 226 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 use of bioweapons. Following WW II, most state use of bioweapons 40 has been as tools of assassination. By far the biggest development of bioweapons was the Biopreparat program by the Soviet Union 41 from 1972 to 1992. Although reportedly no longer in existence, the Soviet program created tons of various weaponized agents and even 42 deployed them in com bat. State development of bioweapons has involved a great variety of agents including common agents, exotic agents, and smallpox. Although initially state actors used bioweapons for widespread effects and even as battlefield weap ons, their overall use in these 43 situations proved ineffectual and unpredictable. Even prior to the BWC in 1972, most states had stopped using these w eapons at all or restricted their use as a strategic deterrent or as tools of assassination. During this same time period, many states continued to develop chemical weapo ns because their predictable and limited effects w ere much bette r suited to battlefield use. 2. Historic Use s by N on-State A ctors The use of bioweapons by non-state actors is a relatively recent phenomenon. One of the earliest examples is a Japanese researcher who contaminated food with typhoid from 1964 to 1966, infecting 44 over 100 people. In 197 2, neo-na zis were caugh t in the United States with over thirty kilogram s of typh oid bacteria, intending to 45 poison water supplies. In 1984, the Rajneeshee cult in Oregon attempted to influence a local election by contam inating sa lad bars Desp erate M easure , D ALLAS M ORNING N EWS, O c t. 2 7 , 2 0 01 , a t 3 9 A . 40. In 1 9 7 8, the Soviets used ricin to kill Bulgarian defector Georgi Markov in Lon don . Bioweapons, supra note 2. Sou th Africa h a s a ls o b een accused of using bioweapons for assassination du rin g th e R ho de sia n C ivil W ar i n th e 1 97 0’s. K eef er, supra note 13, a t 1 1 7. A n outbreak of anthrax during 1979-198 0 in Zimbab we is also suspected of being a bioweapon at ta ck b y th e w hit e R ho de sia n a rm y. T ell, supra no te 7 , at 2 9. 41. The facility in Stepnogorsk, Kazakh stan, which was built in 1982, had ten 20,000-liter fermentation vats, which could produce 300 tons of anthrax in a 220-day cycle. Judith Miller et al., A Horrifying Revelation in Kazakhstan, T IMES U NION, Nov. 5, 2001, at A1 [hereinafter Miller et al., Revelation]. Overall, Biopreparat employed over 30,000 peop le, including over 7,000 scientists at 50 different lab ora tor ies . The O’Reilly Factor: Interview with Bill K urtis (Fo x N ew s N etw ork tele vis ion bro ad cas t, O ct. 2 6, 2 00 1), available at 2001 WL 5081847. 42. The So vie t pr ogr am we ap on ize d a nth rax , Eb ola , an d M arb urg , am o n g other agents. Wendy Or en t, After Anthrax, A M . P ROSPECT, M ay 8, 2 0 0 0 , at 1 8. During their invasion of Afghanistan, the S ovie ts r ele as ed gla nd ers on M uja he din forc es. W ood all , supra note 38, at 1568. 43. For example, Russian forces stopped a N azi advance in 1942 through the use of pne um onic tularem ia, but the att ack backfired when the outbreak returned to infect the Ru ss ian arm y. W ood all , supra note 38, at 1568. 44. Ali K han et a l., Precautions Against Biological and Chemical Terrorism Directed at Food and W ater Supplies, 11 6 P UB . H EALTH R EP. 3, 5 (2001). It is hypothesized that the res ea rch er u sed the ag en t in an att em pt t o ga the r da ta for h is d oct ora l th esi s. Id. 45. Ke llm an , Biological Terrorism, supra note 7, at 443. Spring, 2003] COMBATING THE THREAT 227 46 with salmonella, causing 751 illnesses. Before releasing sarin gas during a chemical weapons attack on a Tokyo subway, Aum Shinrikyo had attempted to wea ponize and release botulinum toxin 47 and anthrax. In 1995, Aryan nation member, Larry Wayne 48 Harris, was arrested for ordering bub onic plagu e through the m ail. Also in 1995, two M inneso ta militia mem bers w ere caught trying to 49 use ricin to attack government officials. In 1996, a disgruntled hospital employee contaminated muffins and doughnuts w ith 50 Shigella dysenteriae in Dallas. A num ber of conclusions can be drawn from these exam ples. First, none of the attacks caused w idespread harm . The broadest effect was tha t caused by the Ra jneesh ee’s, wh o caused over 700 51 illnesses. However, none of these attacks caused more than a few fatalities. Mo st of the attacks w ere never carried out or were not very effective. Secon d, there are tw o genera l types of non-state actors who actually use these weapons. As the 1962 and 1996 incidents show, one type includes disgruntled lone actors who wo rk 52 around biological agents. These attacks have included common 53 agents and exotic agents to which the actor had access. While these actors appear more effective in causing death, the scopes of the attacks have been limited, and no w idespread effect appears to have been intended. 54 The other type of non-state actors include religious extremists. They appear to intend much broader effects but have failed to 55 achieve them. For example, Aum Shinrikyo spent years and millions of dollars atte m pting to create biow eapons, yet failed to 56 accomplish much. While limited casualties have been possible, non -state actors have not yet dem onstrated the ability to yield 57 bioweapons as weapons of mass destruction. Attem pts to develop exotic agents have generally failed, an d the use of com mon a gents has not lead to widespread harm. 46. Kh an et a l., supra note 44, at 5. 47. Schechter & Ar no n, supra note 17, at 238. In 1992, the cult sent a team to Zaire in a fai led att em pt t o a cqu ire E bo la. K ellm an , Biological Terrorism, supra no te 7 , at 4 25 . 48. Barry Ke llm an , Catastrophic Terrorism – T hinking Fearfully, Acting Lega lly, 20 M ICH . J. I NT’L L. 5 37 , 55 2 (1 99 9) [h ere ina fter Ke llm an , Catastrophic Terrorism ]. 49. Ke efe r, supra note 13, at 118. 50. Kh an et a l., supra no te 4 4, a t 5. 51. Id. 52. This is the Federal Bureau of Investigation’s current theory for the 2001 anthrax at ta cks . See FB I, supra note 4. 53. Id. 54. Religious actors such as the J apan ese cult, Aum Shinrikyo, repres ent this type o f actor. Sc he cht er & Ar no n, supra no te 1 7, a t 23 8; B row nle e, supra no te 3 1, a t W 08 . 55. See FB I, supra no te 4 ; Br ow nle e, supra note 31, at W08. 56. Sc he cht er & Ar no n, supra no te 1 7, a t 23 8; B row nle e, supra no te 3 1, a t W 08 . 57. Sc he cht er & Ar no n, supra note 17, at 238. 228 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 3. Current Use s by State Actors Some experts believe that state actors are the major threat of bioweapons. Because it is so difficult to acquire, it is believed that 58 only a state could have smallpox right now. The difficulties of weaponization have led some to believe that only a state could have 59 produced the anthrax th at was used in the recent attacks. Although the exact list of states with bioweapons is not known, the 60 61 CIA and other experts believe that approximately one dozen nations have bioweapons progra ms. Som e na tions m ay be drawn to bioweapons as a cheaper and easier alternative to nuclear weapons 62 for use as a strategic deterrent. One reoccurring fear is that scientists wh o were form erly employe d in the Soviet bioweapons program have been drawn to Iraq or Iran to work on bioweapons 63 programs. State actors would have the resources to develop exotic agents, and may also have the ability to acquire smallpox. Current examples include: 64 Iraq: Iraq is known to have a bioweapons program. By 1990, Iraq had 150 bombs with 60-85 liter 65 payloads of botulinum toxin, anthrax, or aflatoxin. In total, the Iraqi government is believed to have 58. Brownlee, supra note 31, at W08. Some experts believe that Ru ssia , Iraq and N orth Korea have the virus and suspect that China, Libya, South Africa, Israel, and Pakistan might have the viru s. Id. See also Hea rings, supra note 3 (quoting Dr. Kenneth Alibek as saying he k n ew N o rt h Koreans were working on sma llpox and that Iraq was w orking on camelpox as a surrog ate). 59. E.g ., Weiss & Eg gen , supra note 10, at A0 1. But see FB I, supra note 4 (hypothesizing that a lone actor is respo nsib le for the atta cks). 60. See Ta ra O ’To ole & Th om as Ing les by , Facing the Biological Weapons Threat, T HE L ANCET, Sept. 30, 2000, at 1129 (listing the number of states that the CIA believes possess biow eap ons p rogram s). 61. See, e.g., W ill E ng lun d, US SR O ne of Many Sources for Anthrax, B ALTIMORE S UN , Oct. 17, 2001, at 8A (listing Iraq, North Korea, Iran, China, Libya, Syria, Taiwan, Pakistan, India, Israe l, Egyp t, Sou th A frica, and Sud an). 62. See Ke efe r, supra note 13, at 112 (describing the role of biological weapons as strate gic asse ts). 63. See, e.g., N ich ola s K ral ev, Anth rax Stirs U S R eview of F oreign Germ P ro gra m s, W ASH . T IMES , Oc t. 22 , 20 01 , at A 16 . Ve cto r sc ien tis ts o nly ea rn $ 10 0 a m on th i n R us sia . See Talan & Ple ven , supra note 30, at A04. Iran has offered $5,000 a month for the ir se rvic es. See B rownlee, supra note 31 , at W0 8. Plans to tra nsform old facilities into legitimate b iotech fac iliti es h av e fa iled . M ille r et al., Revelations, supra note 41, at A1. 64. See, e.g., J UDITH M ILLER ET AL., G ERMS: B IOLOGICAL WEAPONS AND A MERICA ’S S ECRET W AR 98-1 50 (2 001 ) (describ ing Ira q’s biow eap ons p rogram ). 65. Ke efe r, supra note 13, at 111. Spring, 2003] COMBATING THE THREAT 229 66 10,000 liters of bo tulinu m toxin and to be working 67 on either smallpox itself or related viruses. China: A recent outbreak of hem orrha gic fever in Northeastern China sparked con cern because there 68 had been no prev ious cases in the affected area. Subsequent reports showed facilities in the area with fermenters and biocontainment equipment, which led many to hypothesize that China was pursuing a 69 bioweapons progra m. Ru ssia: Although the Soviet weapons program officially ended in 1992, the form er deputy head of the program believes that th e program ma y still 70 exist. Russian officials admitted in 1999 that military labs continue to research Ebola and Marburg, although supposedly only for treatment 71 purposes. Iran/Cuba: While neither country is known to have bioweapons program s, both are suspected of pursuing such programs and have extremely well-developed 72 biotechnology sectors. As shown , a num ber of sta tes h ave w ell-developed bioweapons programs. These programs include com mon agents, exotic agents, and sm allpox. These various bioweapons represent a serious threat to the safety of the world. H owever, the ineffectual use of such agents on th e battlefield w ould characterize these wea pons a s more of a strategic asset rathe r than a m ilitary one. States would likely use such assets as negotiation tools in deterring other states from using weapons of mass destruction. While bioweapons have been used during the 20th century during armed conflict, unexpected and negative consequences have shown them to be ill-suited for military 66. Schechter & Ar no n, s u p r a note 1 7, at 2 38. T his am ount of the to xin is h ypoth etically sufficient to kill over 300 billion people. 67. Hearings, supra note 3 (testimony of Dr. Kenneth Alibek, stating that Iraq was working on ca m elpox as a surrog ate for s m allpox ). 68. W ood all , supra no te 3 8, a t 15 69 . 69. Id. 70. Andrew Jack, Extent of Russian Bioweapons Programm e Generates Fear, F IN . T IMES , Oct. 26, 2001, at 5 (quoting Dr. A libek’s fea rs of a co ntinu ing pro gram ). 71. Orent, supra note 42, at 18. This claim seems suspicious in light of the fa ct tha t Eb ola an d M arb urg are no t en de m ic to an y R us sia n te rrit ory . Id. 72. See Hearings , supra note 3 (testim ony o f Dr. A libek). 230 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 use. The m ost powerful agents, w hich are highly infectiou s, could be transmitted back into the state that released them. Therefore, states ma y be even less likely to use bioweapons than nuclear 73 weapo ns. 4. Current Use s by N on-State A ctors While some experts believe that only a state could have the resources to pursue bioweapons, other experts have identified non- 74 state actors a s a gre ater threat. Bioweapons clearly have advantages that w ould appeal to terrorists, such as the potential for high death to cost ratios; the ability to smuggle small, undetectable, 75 yet effective quantities; and the ability to cause ma ss panic. Howev er, some experts have viewed the failures of non-state actors with sophisticated resources to develop effective bioweapons as proof that such wea pons a re not w ithin the grasp o f non-state 76 groups. Non-state actors could be divided into three general categories: political terrorists, religious terrorists, and disgru ntled loners. This first group would probably not use bioweapons, but the latter two may. “Political terrorist” encompasses the 1970’s and 1980’s view of terrorists, includin g social revolutionaries and national 77 separatists. These a re groups that are m otivated by political goals, and w ant to influence the political decisions that are ma de in 78 the West. Therefore, they are likely to avoid the hu ma nitarian 79 outrage that w eapons o f mass destruction would evoke. In focusing on discrete targets, conventiona l weapons w ould be much 80 cheaper and mu ch more effective. While it is possible that such a group would pursue the development of biow eapons, it would be for 73. How ever, it also may be harder to detect or trace back a bioweapons attack. This might ma ke such weap ons more attractive to use. 74. See, e.g., Panel II of the Hearing of the Technology, Terrorism, and Government Information Subcom mittee of the Senate Judiciary Com mittee, F ED . N EWS S ERV., Nov. 6, 2001 [hereinafter Panel II ] (testimony of Michael Drake, Vice President of Health Affairs for the Un iversity o f Ca lifornia). 75. See Ke llm an , Biological Terrorism, supra note 7, at 427. 76. See Th e O ’R eilly Factor, supra note 41 (reporting that Aum Shinrikyo spent millions of dollars and years trying to develop anthrax and botulinum, but failed to create effective wea pon s). 77. S ee Hearings , supra note 3 (testimon y of Jerrold Po st, political psychiatri s t a nd ps ych olo gis t w ho int erv iew s te rro rist s). 78. See id. 79. See Ba rry Ke llm an , Review Essay: Clashing Perspectives on Terrorism , 94 A M . J. I NT’L L. 434 , 435-4 36 (2 000 ) [herein aft er K ellm an , Review Essay] (reasoning that such groups wou ld want to influence the existing political structure and attract adherents, and, therefore, wou ld not take action s tha t wo uld lea d to com plete o utrag e in pu blic opin ion). 80. See He arin gs, s u pra note 3 (testimony of Jerrold Post, political psychiatrist and psych ologist w ho int erview s terror ists). Spring, 2003] COMBATING THE THREAT 231 similar reasons as a state: for use as a strategic asset rather than 81 as a weapon. Such groups have not been shown to be involved 82 with bioweapon s so far. Religious terrorists, on the other hand, would utilize bioweapons 83 because their goals are very different. Their goals include widespread damage, and they are not as concerned with political 84 repercussions. Such groups have no real political agen da an d are not trying to build a movement or negotiate with the existing power 85 structure. Right-wing groups such as the Montana Militia and Aryan Nation are inclu ded within this group because o f the close ties of their tenets to extreme religious philo sophies and similar 86 disregard for political fallout of actions. Most bioweapons use by non -state groups has bee n by entities falling within this 87 classification. Some evidence exists that current groups with in 88 this category are attempting to acquire or develop bioweapons. While previous attempts have proved largely ineffective, new 89 delivery techniques such as suicide h um an ve ctors may get around many previous problems with delivery m echan isms. H owe ver, such weapons would likely be limited to common agents due to the difficulty o f acquiring and developing exotic agents or sm allpox. The third group, disgruntled loners, represents a threat of bioweap ons, but not of widespread usage. Past incidents have involved lone actors using resources obtained from their 90 em ploym ent. Wh ile some experts feel that such lon e actors 91 represent the biggest threa t of future terrorism, the examples of past usage seem to indicate a narrower threat. Such actors are constrained by their access to biological materials. While they may have access to exotic agents, they do not have sophisticated 81. Id. 82. Id. 83. Id. 84. Id. 85. See Ke llm an , Review Essay, supra no te 7 9, a t 43 5. 86. See, e.g, Hearings , supra note 3 (testimony of Jerrold Post, political p sychiatrist and psych ologist w ho int erview s terror ists). 87. For a review of bioweapon use by non-state actors, see discussion supra Part II.B.2. 88. See, e.g., En glu nd , supra note 61, at 8A (examining unconfirmed reports that bin Laden got an thr ax from Cz ech Re pu bli c or N ort h K ore a); Kenya, A W eapon of Ch oice in Biological W arfare, A FR. N EWS, Oct. 19, 200 1 [hereinafter Kenya ] (reporting that mem bers of Egyptian Islam ic Jiha d claim ed to h ave b iowe apo ns in 1 999 ). 89. “Suicide hum an vector” refers to deliberately infecting human agents with a contagious disease, and then instructing the agent to try to infect as ma ny people as possible through cas u a l conta ct. Infected agen ts w ould v isit crow ded enclos ed a reas, su ch as shop ping m alls or mo vie theaters, and try to infe ct o the rs. The Jap ane se us ed su ch tech niqu es in a batt lefield set tin g w ith som e su cce ss in M an chu ria . Ke efe r, supra note 13, at 114. 90. See discussion supra Part II.B.2. 91. E.g ., Ke llm an , Review Essay, supra note 79, at 435. 232 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 equipment or developmental capabilities beyond acquiring those agents that could easily be acquired. While the recent anthrax 92 attacks ma y represen t the poten tial reach of such a lone actor, they would involve single, unsophisticated agents and limited delivery mechanisms. If laboratories exist, which work on smallpox or sophisticated exotic agen ts, there would also be a risk that these agents may be used by a disgruntled employee. How ever, the risk is small because such laboratories would likely have significant oversigh t an d su rveillance. Non-state actors a re lim ited in the types of agen ts they could utilize as bioweapons. Comm on agents such as anthrax or plague 93 could easily be acquired from na tural sources. Defunct weapons testing sites such as Vozrozhdeniya Island in the Aral Sea could also 94 be a potential source of a wider range of agents. Exotic agents such as hemorrhagic fevers would likely be too difficult to acquire 95 and to culture for non-state actors to possess. Smallpox could probably not be acquired, absent transfer from a state, which is not likely due to the extreme political repercussions that would follow if such a transfer were discovered. C. The Current Threat Non-state religious terrorists are the greatest threat because they are the actors m ost likely to use biow eapons in an attem pt to cause widespread h arm . They ha ve dem onstrated the desire to acquire and to deploy such weapons, alth ough their attempts to actua lly use such weapons have been limited to common agents and have not caused widespread harm so far. State actors have m uch more sophisticated weaponry, including exotic agents and smallpox, which would be effective in ca using casu alties if deploye d. While states themselves are unlikely to actually use such weapons, the development of such agents raises the fear that religious terrorists 96 may acquire the agents. The existence of extreme religious terrorist groups with close ties to states also raises the possibility of such transfers. Therefore, the existence of state programs raises the 92. See, e.g., FB I, supra note 4 (hypothesizing that a loner actor is responsible for the recent anth rax a ttack s). 93. See discussion supra Part II.A.1. 94. See Or en t, supra note 42, at 18 (noting that the island has been inundated with many differen t we apo nized agen ts). 95. See Ke llm an , Biological Terrorism, supra note 7, at 440. 96. Either accidentally, such as from old testing sites, or intentionally, such as reported for bin Laden acquir i ng a n t h rax. In a dying declaration, King Hus sein of Jordan warned of sm allpo x b ein g re int rod uce d in to t he wo rld . 60 M inutes, supra no te 2 8. Spring, 2003] COMBATING THE THREAT 233 threat of bioweapons, although it may be non -state actors who are actually e mployin g th em . It is crucial to stop th e proliferation of these weapon s because medical and public health response would not likely be able to prevent widespread harm . Public health surveillance may be 97 inadequate to detect bioweapons events early enough, and 98 potential treatments may n ot be effective, or available, in sufficient quantities to respond to threats. Recent simulations of infectious biow eapon re leases have predicted catastroph ic 99 consequences. Therefore , all steps m ust be taken to ensure th at the threat of bioweapons is adequately controlled. III. T HREAT R ESPONSES Four types of responses to the threat of bioweapons have been used or proposed. The first is an intern ational agreem ent, such as the BW C. The second is an inspection regime . The third is restrictions on the materials necessary to develop and use bioweap ons. The final option is criminalization of bioweapons. A. The 1972 Biowea pons Convention “The [Biological Weapons Convention ] needs en forcem ent teeth if we are to have confidence it is bein g respected arou nd the world.” - 1998 Statement by Madeline Albright, United 100 States Ambassador to the Un ited Nations. 97. See De bo ra M acK en zie , Under Surveillance, N EW S CIENTIST , Apr. 8, 2000, at 1616 [hereinafter M acK en zie , Un der Su rveillance] (discus sing th e prob able inad equ acy of a pub lic he alt h re sp on se t o a bio log ica l at ta ck) . 98. See Hille l W . Co he n e t al ., Bioterrorism “Preparedness”: Dual Us e or Poor Excuse?, 115 P UB. H EALTH R EP. 403, 404 (2000) (noting that the anthrax vaccine has never been proven effective against we ap on ize d fo rm s); K elly M orr is, US M ilitary Face Punishment for Refusing Anthrax Vaccine, T HE L ANCET, J an 9, 1 99 9, a t 1 30 (n ot in g th at s om e ex pe rts do ub t vac cin e’s effic ien cy); N as s, supra note 1 1, at 4 92 (re portin g tha t the o nly manufacturer of the anthrax vaccin e receive d 11 -page s of qu ality con trol failure s from FD A in spect ors). 99. A recent two-day s imulation at Andrews Air Force Base started with twenty-four sma llpox cases in the Un ited S tates and ende d tw o we eks la ter w ith the vaccin e sup ply exhausted, 15,000 infections, 1,000 deaths, and a 10-fold increase in infections expected every t w o weeks. Another sim ulation starting with 100 cases in a United States city led to a wo rld wi de cat as tro ph e w ith in 1 yea r. See Br ow nle e, supra note 31, W08. 100. Helen Gavaghan, Arms Control Enters the Biology Lab, S CIENCE, July 3, 1998, at 29. 234 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 “[There is] broad agreement that m ore w ork n eeds to be done to examine me asures to strengthen the Biological Weapons Co nvention ….” - 2001 Statem ent by Philip R eeker, 101 State Department Spokesman. The 1972 Bioweapons Convention (“BWC”) has been ineffectual at stopping the proliferation of biow eapons. Although 143 nations 102 have ratified the convention, many countries, including some of those who have ratified the convention, have continued to p roduce 103 bioweap ons. The Soviet bioweapons program even experienced a 104 rapid expansion after the 1972 convention. Com pliance with the 105 treaty has been extrem ely difficult to monitor. Additionally, such conventions hav e no pow er to deter terrorist groups that are seeking 106 to acquire or to use such we apons. Th erefore, it is necessary to utilize measures beyond the BW C to combat the threat of bioweap ons. B. Inspections Inspections have been proposed by many parties as a solution to the inefficacy of the BWC. F irst, the stru cture of the BWC Protocol’s inspection regime will be analyzed. Second, the costs of such an in spection program will be evalua ted. Th ird, possible constitutional challenges to inspections will be review ed. Fourth, the efficacy of the inspection regime will be evaluated as to different threats. Fina lly, a sum ma ry of the net value of inspections will be presented. 1. BWC P rotocol The recent draft proposal for an inspection regime for the BWC 107 included both random transparency visits and challenge visits. Similar to the Chemical Weapons Convention (“CW C”), the Protocol 101. Philip Reeker Holds State Department Briefing, FDC H P OL . T RANSCRIPTS, July 23, 2001 [hereinafter Briefing]. 102. See Kenya, supra note 88 (stating 17 other nations have signed the BW C, but have not yet rat ified it). 103. See discussion supra Part II.B.3. 104. See Ru ssia C ould Rea ctivate Bi olo gica l W ea po ns in M on ths , A GENCE F R . P RESSE , Apr. 6, 1 99 9, at 1999 WL 2577987. 105. See Ma tthew Linkie, The Defense T hreat Reduction Agency: A note on the U nited States’ Approach to the threat of Chemical and Biological W arfare, 16 J. C ONTEMP. H EALTH L. & P OL’Y 531 , 533 (2 000 ). 106. See id. at 552. 107. See B ioweapons, supra note 2. For the text of the Protocol, see http://www .un.org/ Dep ts/dda /WM D/bw c/index.h tm l (last visite d Fe b. 13, 2 003 ). Spring, 2003] COMBATING THE THREAT 235 would create three bodies: a general Conference of State Parties, an Executive Cou ncil to make decisions regarding compliance, and a 108 Technical Body to condu ct inspections. M emb ers could request challenge insp ections for both state and non-state facilities as w ell 109 as field-testing for suspected releases. A member being investigated would have the right to limit access to sensitive areas 110 unrelated to the claim of non-compliance. 2. Costs of Inspections “I’m not sure that an yone can guara nte e confidentiality.” - Helmut Bachm ayer, Head of 111 Corporate Biosafety for Novartis. “[I]f I come to a new facility or any facility and see some equipment . . . it says absolutely nothing to me” - Ken Alibek, former Deputy Head of the Soviet bioweapons program, testifying before Congress on the 112 lack of threat to proprietary information. The Bush adm inistration and industry groups have identified a num ber of concerns over the proposed inspection regime. The major concerns are th reats to intellectual property an d threats to national 113 security. Although the industry concerns are legitimate, 114 especially in light of the potential scope of inspections, experien ce with the CWC and the views of industry representatives have indicated that many of these threats could be adequately minimized 108. See Ke efe r, supra note 13, at 132-133. 109. See id. at 136. 110. See id. 111. Ga va gh an , supra note 100, at 29. 112. Hea rings, supra note 3. 113. See, e.g., Gl en da Co op er, U.S. Rejects Biological Arms Ban Protocol, W ASH . P OST , July 26, 2001, at A01 (stating that almost all of the 55 nations par t y t o th e d raft negotiations supported the pro po sa l); L yn n C . Kl otz , Means for Protecting U.S. Industry Within an Effective C o m p li an ce R eg im e fo r t he B io l og i ca l Wea pons Conven tion, 12 D EPAUL B US. L.J. 329, 331 (2000). Other nations, including China and India, have expressed concerns over inspection reg im es. See De bo ra M acK en zie , Biowar Checks Hang in the Balance , N EW S CIENTIST , N ov. 2 3, 1 99 6, a t 11 11 [he rein aft er M acK en zie , Biowar]. 114. S ee Ga va gh an , supra note 10 0, at 29 (pred icting hundred s of facilities would co m e with in scope of inspection criteria); Caroline Linton, Bo sto n L ab s: Anth rax Secu re, U-W IRE, Oct. 30, 200 1, at *1-2 (noting th a t m a n y labs in the Boston area work w ith some form of anth rax); Co op er, supra note 1 1 3 , at A 01 (st at ing tha t a pp roxim at ely 40 % of t he world ’s biotech firms are located within the U nited Sta tes). Other estim ates are th at there are app roxim ately 250 unive rsity la b s a n d 3 0 0 private labs in the United States that work on restricted p a t h ogen s a nd wo uld , the refo re, b e su bje ct to ins pe ctio n. Pane l II, supra note 74. 236 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 115 with an effective inspection regime. The threat to national security could also be minimized through restrictions on the scope of inspections. Intellectual Property: There are two types of information that it is feared may be compromised: proprietary microorganisms and other confidential 116 inform ation. In the biotech industry, the microorganism itself is often the m ost valuab le 117 asset. Because only a miniscule amount of microorganism would n eed to be taken to steal the technology, there is an added threat that does not 118 exist under the CWC. However, it m ay be possible to limit the risk of such a theft. Inspectors could be required to use non -viable testing only, which w ould mean that live organisms would never leave the 119 facility and could not be stolen. The limited immu nities within the current Protocol also allow for inspectors and other em ployees to be h eld civilly liable for theft of confidential inform ation or 120 proprietary microorganisms. equ ipm ent in place m a biotech facility would not the As compared to ch e at ical plants, merely viewing 121 reveal as much useful information. Unlike the chemical industry, w here complex processing is often the crucial technology, the biotech industry revolves around microscopic phenom ena that are no t easily revealed. Many industry representatives have even expressed their acceptance of proposed inspection 122 regimes. While there is some uncertainty , it 115. The BW C has not ha d a single accusation of theft of proprietary information after almost 50 years of ins pe ctio ns . LA Times Urges Administration Support for Bioweapons Treaty, B ULLETIN’S F RONTRUNNER , Nov. 5, 2001. 116. See Kl otz , supra no te 1 13 , at 3 38 . 117. See id. 118. See id. 119. See id. 120. See Ke efe r, supra note 13, at 132-33. 121. See H e a r i n gs, supra note 3 (testimony of Dr. Kenneth Alibek, former deputy head of Bioprep arat, the Soviet Union’s bioweapons program, and President of Advanced Biosystems, Inc ., stating tha t me rely having insp ectors within a biotech facility would not revea l any prop rietary inform ation ). 122. E.g ., Kl otz , supra note 1 13, at 342 (auth or is a co nsu ltant t o biote ch ind ustry ); Ma rketplace Health Desk (N a t’l Public Radio, Nov. 5, 2001), audio available at http://ma rketplace.org/features/ health_desk / [hereinafter Ma rketplace ] (citing Barbara Ha tch Rosenberg, head of the Federation of American Scientists, as sayin g inspections cou ld protect Spring, 2003] COMBATING THE THREAT 237 appears that an inspection regime could include enough safeguards to sa tisfy the biotech industry’s concerns regarding proprietary information. National Secu rity: The Bush administration has rejected the proposed inspection regime partly out of 123 fear of a threat to national security. Potential threa ts include harassment of government labs 124 through excessive a nd disruptive challenge visits, 125 undermining technology export regulations, and 126 compromising defensive research into bioweapons. While these threa ts are legitimate concerns, it may be possible to design the insp ection Protocol to protect against them. Exportation of technology could be prohibited by restricting testing to on-site or non -viable mechanisms. The effect on government research could be avoided through the use of a right to refuse inspections, such as that included in the 127 CWC, or the right to limit the scope of inspections as set forth in the draft Protocol. While there are legitimate threa ts from an in spection regime , it appea rs likely that su ch threats co uld be dealt with in designing the protocol for inspections. Industry groups have sho wn a willingness to accept inspections, and the chemical industry has submitted to inspections without incident for many years. Govern ment se curity concerns could also be dealt with, if necessary, by reserving the right to deny access to inspectors. U nless the U nited States is protecting a clandestine bioweapons program of its own, the inspections should not present a serious problem. prop rietary strain s an d inform ation ). 123. See Co op er, supra note 113, A01 (quoting United S ta te s n eg ot ia to r D o na ld A . Mah ley: “In our assessment, the draft protocol would put national security and confidential business inform ation at risk ”). 124. See id. 125. See id. 126. See Inspect and Survive, N EW S CIENTIST , Nov. 3, 20 01, at 33 [hereinafter Inspect and Survive]. 127. See M ich ae l P. S cha rf, Clear and Present D anger: Enforcing the International Ban on Biological and Chem ical Weapons Through Sanctions, Use of Force, and Criminalization, 20 M ICH . J. I NT’L L. 47 7, 485 (199 9). 238 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 3. Constitutional Issues of Inspections The use of an inspection regim e m ay im plicate the F ourth 128 Am endment. Similar constitutional issues exist under the CWC, since the CWC authorizes the federal governm ent to inspe ct 129 chemical facilities without a search warrant. While under the BWC, internation al inspectors would be carrying out the inspection rather than federa l agents, however, the y would likely be judged as 130 “state actors.” Therefore, rights under the Fourth Amendment would be im plicated. While challenge visits would have to be authorized by the Executive Council under the current P rotocol, this would unlikely satisfy the warrant requirement due to the Council’s inability to be neutral and detached. The Council would have the responsibility to ensure com pliance with the BW C, and therefore, it may be viewed 131 as an executive body. However, these searches may be constitutional under the “Special N eeds” exception to the warrant 132 requ irem ent. If the primary purpose of the inspe ction is n ot a criminal investigation, the cou rts w ill bala nce th e natu re of: 1) the privacy interest at stake; 2) the intrusion; and 3) the government’s 133 interest. The Supreme Cou rt has broadly applied the “special needs” 134 doctrine and would likely apply it here, due to the threat that bioweapons pose to both public health and national security. Because the potential ha rm from biow eapons is unique ly devastating, courts would likely find a “special need.” The privacy at stake is the sam e as th ose of factories a nd labora tories, as opposed to individuals; thus, courts would not likely attach m uch weight to the privacy interest or th e intrusion. Co urts w ould further recognize that biotechnology is a heavily-regulated industry, 135 and therefore sh ould not ex pect a great dea l of privacy. In 128. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violate d, and no w arran t sha ll issue, but upon probable cause.” U.S. C ONST . a m e nd . I V . 129. See Lin kie , supra note 105, at 562 (discussing the constitution al imp lications of such searc hes). 130. See De bb ie R ya n B ing -Za rem ba , Knock, Knock, Who’s There? Can Chemical Weapons Inspectors Enter U.S. Facilities W ithout a S earch W arrant? , 11 TEMP. I NT’L & C OMP. L.J. 57, 66-6 7 (19 97). 131. For a detailed analysis of this issue, see id. at 69-71. 132. See Ke llm an , Biological Terrorism, supra no te 7 , at 4 78 -79 . 133. Id. at 479. 134. See, e.g ., Griffin v. Wisconsin, 483 U.S. 868, 875 (1987) (recognizing the role of probation officers for the government’s interest in rehabilitation); Camara v. Mun. Ct. of San Francisco, 387 U.S. 523, 535-36 (1967) (recognizing the government’s interest in housing ins pe ctio ns ). 135. See, e.g., Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) (reasoning that Spring, 2003] COMBATING THE THREAT 239 addition, courts have given broad discretion to government decisions 136 137 that involve national security and international relations. For all of these rea sons, it would be very likely that courts would find the proposed in spection regime constitutional. 4. Efficacy of Inspections Even if the costs of inspections can be minimized, they may not provide a powe rful tool in the fight against bioweapons. Part of the attractiveness of the CW C w as the ability to inspect alleged 138 violators’ chemical we apons. Large, complex, and imm obile facilities are needed to produce substantial quantities of chemical agents. However, with biotechnology, small-scale production could easily be hidden with one or two weeks notice of an impending 139 inspection. One of the Bush adm inistration’s biggest criticisms of the proposed inspe ction regim e is tha t it wou ld be possib le to 140 circumvent detection. States may be able to delay inspections long enough to destroy any evidence of violations. Th e experience of Un ited N ations inspectors in Iraq dem onstrates th e difficulty in 141 detecting a bioweapons program. Inspections would not be able to reach non-state actors if their facilities were not large enough or visible enough to be subject to an inspection regime. While not foolproof, inspection regimes may still deter or retard the development of bioweapons. Developing exotic agents may require the type of facilities that w ould fall un der the inspection regime. Even if inspections could not stop a state from pursuing a program, they ma y sign ificantly raise th e cost of conducting 142 research and thereby deter such research. One of the motivations for state bioweapons research is the fear that the United State s 143 possesses such wea pons. Greater transparen cy m ay reduce this motivation and discourage countries from seeking bioweapons. because the train indu stry is heavily regula ted, it should not e xpect or receive great privacy prote ction). 136. E.g ., Korematsu v. United States, 323 U.S. 214 (19 44) (giving very broa d deference to decisio n to int er Ja pan ese-A m erican s du e to na tiona l security concer ns). 137. E.g ., S t at e v . H o ll an d , 2 5 2 U .S . 4 1 6 ( 19 2 0) (h ol di ng th a t C ongress ca n p as s la w s pursuant to the treaty pow er tha t wo uld b e unc onstit ution al if pas sed fo r solely d om estic reaso ns). 138. See Bi ng -Za rem ba , supra note 130, at 61. 139. Hearings , supra note 3 (testim ony o f Dr. A libek). 140. S ee Bi ll N ich ols , U.S., Europeans resume talks on bioweapons, USA T ODAY , Oc t. 2 3, 2 0 01 , a t 4 A . 141. See J UDITH M ILLER ET AL., supra note 64, at 98-150 (detailing the experience of the Un ited S tates and the U nited Na tions w ith Iraq ’s biologica l wea pon s prog ram ). 142. See Ke llm an , Catastrophic Terrorism , supra no te 4 8, a t 55 3; C oh en et a l., supra note 98, at 404. 143. See Ke llm an , Catastrophic Terrorism , supra no te 4 8, a t 55 3. 240 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 Even if non-state actors are the largest threat, they may disguise their efforts behind legitimate fronts that would be reached by the 144 inspections. Additionally, curtailing state-based program s wo uld reduce the risk of accidental or intentional transfer of technology or agents to n on-state actors. Therefore, inspections may help combat both state and non-state actors from developing or acquiring bioweap ons. 5. Conclusion The poten tial costs of inspection regimes could likely be avoided by building in adequate safeguards, such as non-viable testing to prohibit theft of microorganisms, by limiting the scope of inspections to specific challenges, and b y refusing inspections in order to protect national security interests. Although inspections would not eliminate the threa t of bioweapon s, it may discou rage state a ctors from pursuing program s and hin der non-state actors in their efforts. While not completely effective, the benefits of inspe ctions a ppear to outweigh the costs of such a system. C. Restrictions on Equipment One of the alternatives that the Bush administration has proposed is expansion and strengthening of th e A ustralia Grou p, a group of approximately thirty nations formed in 198 5 tha t restricts the sale and export of the high-tech equipment needed to develop 145 weapons of mass destruction. This section will first analyze restrictions on seed cultures for bioweapon a gents. Secon d, this section will review restrictions on the equipment needed to culture and weaponize such agents. Fina lly, it will summarize the ability of such restrictions to combat the developm ent of bioweapon s. 1. Restrictions on Seed Cultures If the goal is to restrict the use of biological agents as we apons, it ma y seem valu able to restrict access to such biological agents. For example, U.S. regulations require registrations for transfers of 146 biological materials. Sales from dom estic firms to foreign governm ents and foreign individuals require the approval of the 147 Com merce Department. The biotech industry supports such 144. Such large facilities might be necessary to develop exotic agents. See discussion supra Part II.A.2. 145. See Co op er, supra note 1 13, at A0 1 (des cribing t he A ustra lia Gr oup ). 146. See H ea the r A . Da gen , Co m m en t, Bioterrorism: Perfectly Legal, 49 C ATH . U . L. R EV . 535 , 565 (2 000 ). 147. See Er ic N ad ler & Ro be rt W ind rem , Deadly Contagion: How W e Helped Iraq Get G erm Spring, 2003] COMBATING THE THREAT 241 148 restrictions of sales. If the microorganisms themselves could be restricted, it would be impossib le for state or non-state actors to develop biowe apons. Howev er, lax restrictions on sales and natural availability of common agents have ma de restrictions on microorganisms inad equ ate to combat the threat of bioweapons. It is possible for 149 almost any individual to order cultu res through the m ail. Although public backlash after reports of a neo-nazi ordering plague 150 resulted in supposedly stricter regulations on sales, it is still 151 possible to acquire man y live agents. Even with government approval as a requirement to approve shipments abroad, vast num bers of dangerous organisms have been sold to governm ents 152 that are now working on bioweapons. Outside the United States, there are also many sources for these agents, whether from previous 153 154 weapons testing or from foreign firms. Many biological agents have already been marketed to enough parties, and have continued to be marketed so broadly that restrictions on the agents themselves would be ineffectual in the short-run. For some exotic agents and smallpox, however, restrictions on cultures may be im portant for preventing the development of fu ture w eapons. 2. Restrictions on Weaponizing Equipment Because of the ease of acquiring biological agents, the Australia Group has focused on restricting access to the equ ipm ent th at would 155 be needed to weaponize the agents. Such equipment is necessa ry Weapons, T HE N EW R EPUBLIC, Fe b. 4 , 19 91 , at 1 8-2 0. 148. See Pane l II, supra note 74 (testifying that the A me rican Society of M icrobiologists sup ports registra tion req uirem ents). 149. “[C]ommercial firms offer cultures for a few dollars, and they rarely check whether those placing an o r d er ar e a cqu irin g it f or a leg itim at e u se.” Ke llm an , Review Essay, supra note 79, at 436. 150. Kellman, Biological Terrorism, supra note 7, at 45 1-4 53 (noting that the CDC now requires establishm ent licenses for certain facilities, product licenses to sell micro b e s , a nd requ ires tha t sales and trans fers be registe red w ith the CD C). 151. Ke llm an , Review Essay, supra note 79, at 436. 152. In the 1980’s, the CD C sh ipped d eadly viruses such as W est N ile encepha litis to Iraq, Cuba, Soviet Union, and China, and ove r 130,00 0 cultures of variou s organism s are still sold by the firm each year to foreign nations. N a dle r & W in dre m , supra note 147, at 18-20. From 1985 to 1989, the private firm American Type Culture Collection sold 21 strains of anthrax to Iraq, with all of the sales approved by the Co m m erc e D ep art m en t. T ell, supra note 7, at 29. 153. Sam ples of plague, tularemia, glanders, and anthrax still contam inate Vozrozhdeniye Island, available to anyone with the minim al protection of mas k and glove s. S ee Hearings , supra note 3 (testim ony o f Dr. A libek). 154. Russian scientists are currently marketing antibiotic resistant tularemia from Obolensk, M osc ow , an d V ien na . Or en t, supra note 42, at 18. There are over 1,500 repositories worldwide that sel l va riou s s tra ins of m icro org an ism s. Inspect and Survive, supra note 126, at 33. 155. For examp le, the Australia Group regulates the sale of fermenters, containment 242 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 156 for actors trying to produce biowe apons. Th erefore, it might be more effective to regulate sales of such eq uipm ent th an to try to regulate acquisition of the agents themselves. Howev er, restrictions on the sales of this equipment have also proved ineffective so far at preventing the spread of the m achine ry and technology. Both lax enforcement of sales restrictions and the dua l-use nature of mu ch of this equipmen t has complicated these efforts. The type of milling equip ment necessary to weaponize anthrax is freely available on the open market for less than the 157 price of an automobile. In a recent survey, ten out of nineteen countries evaluated received failing grades for treaty-requ ired 158 regulation of biotech equ ipm ent. Russia was recently exposed for 159 planning to sell 50,000-liter fermenters to Iraq. While sales of such equ ipm ent m ight represent a m ore effective w ay to inhibit the development of bioweapons than restricting the agents them selves, the Australia Group has so far failed to restrict such sales enough for the measures to be effective . 3. Conclusions It is possible that regulating the sale and transfer of biological agents and biotech equipment could combat the development of bioweapons. Many exotic agents are difficult or imp ossible to acquire from natural sources. While som e na tion-states m ay be able to work around such barriers, non-state groups could be hampered by such restraints. However, regulatory regimes for both biological agents and equipment have failed so far. Stringent regulation may be a valuable tool for the future, but it has not been sufficient to comba t the present threat of bioweapons. D. Criminalization In response to international criticism of the Bush administration’s rejection of the inspection protocol for the B WC, it proposed requ iring m em bers o f the B WC to criminalize the use of facilities, centrifuges, freeze drying equipment, and aeros ol inhalation chambers. Kellman, Biological Terrorism, supra note 7, at 458-59. 156. Because anthrax is ubiquitous, the prohibitive step in creating a biowea pon is aerosolization, which w ould involve m illing the particles to the proper size and eliminating electros tatic cha rge s b etw een pa rtic les . Pane l II, supra note 74. How ever, smallpox is one of the few agents that can cause catastrophic damage w ithout sophisticated engineering or de live ry. See discussion supra Part II.A.3. 157. Te ll, supra note 7, at 29. 158. Charles Se ab roo k, Much of World Lax on Bioweapons, C OX N EWS S ERV., Oct. 25, 2001 (noting failing m arks for Ch ina a nd m any form er So viet rep ublics ). 159. Englund, supra note 61, at 8A (reporting that Russia cancelled the transfer after the sa le w as exp ose d). Spring, 2003] COMBATING THE THREAT 243 bioweapons within the ir borders rath er tha n to su bm it to 160 international inspections. This was based on the assessment that non -state actors pose the real threat of bioweapons and was thought as the best way to get to such groups. The CW C, when confronted with similar threats as the BWC , has also included criminalization 161 requiremen ts. In assessin g the valu e of crim inalization, this section will analyze both current and proposed criminal sanctions. It will evaluate their effectiveness at deterring bioweapons development an d preventing th e use o f such weapons. 1. Current Criminal Laws United States law curren tly prohibits the use and possession of bioweapons and carries sanctions of imprisonment in addition to the 162 death penalty. How ever, there are many problems w ith these laws. T he m ost important problem is that the laws are ineffective at criminalizing behavior that takes place before the use of 163 bioweapons in an attack. If a person is caught before using bioweapo ns, then it would be virtually impossible to convict under 164 these laws. For example, neo-nazi Larry Wayne H arris received only six months probation for mail fraud in connection with his m ail 165 ordering of plague. When considering the potential irreparable harm associated with a bioweapons attack, it seems ineffectual for 166 criminal sanctions to only apply after such attacks. It is likely that the current Unites States laws would do little to deter the development of bioweapons. Given th e philosophies of grou ps likely 160. See Bill Nichols, U .S ., E uro pe an s R es um e Ta lks on Bi ow ea po ns , USA T ODAY , Oct. 23, 2 0 01 , a t 4 A . 161. See Ke llm an , Catastrophic Terrorism , supra note 48, at 549. 162. See 18 U.S.C. §§ 175-178 (2002) (criminalizing known possession or development of a biological ag en t for us e a s a we ap on ); Li nk ie, supra note 105, at 543 (discussing the criminal law s). 163. See Ke llm an , Catastrophic Terrorism , supra note 48, at 551 (discussing the limitations of th e re qu irem en t th at the bio log ica l ag en ts b e “fo r us e a s a we ap on ”). 164. See Ke llm an , Biological Terrorism, supra note 7, at 466 (noting that possession of any biological agent without a license would be legal unless the government is able to prove intent to us e th e a gen t as a w ea po n); but see United States v . Baker, 98 F.3d 330, 33 8-39 (8th Cir. 1996) (upholding a conviction under 18 U.S.C. § 175 for actions by defendant prior to an actual at ta ck w ith ricin ). 165. Ha rris avoided charges under 18 U.S.C. § 175 by claiming he was ordering the plague to conduct defensive rese a r ch . See Ke llm an , Biological Terrorism, supra note 7, at 449. 18 U .S .C . § 175(b) (1994) excludes from criminality possession or development of agents for “prophyla ctic, protective, bona fide research, or othe r peaceful pu rpose[s].” 166. Pres i d en t B ush’s proposa l of expand ing the U nited N ations’ ability to investigate suspecte d b i o w e a pons a ttack s is likew ise no nsen sical give n the poten tial da m age o f a bioweapons attack and the need to take preventative measu res. James Gerstenza ng, Tougher Bioweapons Ban A s k ed; Bush Urges 1972 Pact Be Bolstered in Face of Threat, C HI. T RIB., No v. 2, 200 1, at 1 4 (sta ting P reside nt B ush ’s propo sal). 244 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 to actually use bioweap ons, it would also do nothing to deter the use of such weapons. Even if other states were to accept President Bu sh’s proposal a nd in stitute criminal laws in their own territories, there is no reason to be lieve that enforcem ent w ould be any more effective than it is in the United States. In addition , no imp act would be made on a state’s bioweapons program. 2. Expanded Criminal Laws Senator Diane Feinstein has proposed to extend United States 167 law to crim inalize the posse ssion of certain biological agents. While the biotech industry has expressed som e reservations over the potential scope of such la ws, it may be possible to define the criminal conduct without infringing upon legitimate research. This would close the loophole in the current United States laws, and may allow federal authorities to take action against non-state actors that represent a biow eapons threat within the Un ited States. Ho wev er, even if this approach were applied abroad, pursuant to President Bu sh’s proposal, it w ould still be subject to potentially ineffectual enforcement (intentional or otherwise) by foreign nations and an inability to reach state-based biowea pons program s. A separate proposal for using criminalization, advocated by the 168 Harvard Sussex Group, is to push for internation al acceptan ce of characterizing involvement with bioweapons as a “universal 169 crim e.” In addition to requiring other na tions to criminalize bioweap ons, by bringing in any advan tage such an approach may afford, it would create many procedural benefits which would allow 170 the Un ited Sta tes to combat bioweapons on a worldwide ba sis. Such an approach m ay also encourage acceptance of unilateral action in response to a bioweapons threat. This could even allow the United States to target state actors that are pursuing bioweapon s. Recent efforts by the United Nations in other areas have shown that 171 this kind of approach could succeed. Despite these potential advantages, the B ush adm inistration h as explicitly clarified th at its 172 proposed crim ina liza tion is not for “univ ersal ju risdiction.” 167. Da gen , supra no te 1 46 , at 5 62 . 168. See Sc ha rf, supra note 127, at 506-508 (giving background on the H a r v ar d S ussex Pr ogr am an d e xp lai nin g its pla n). 169. See Ce cil H un t, The P otential Co ntribution of the C hem ical We apons Conv ention to Combating T erro ris m , 20 M ICH . J. I NT’L L. 523, 531-33 (1999) (discussing the a dop tion of a ir piracy and hosta ge tak ing as unive rsal crim es). 170. Id. Benefits include eas ier extradition, internationa l assistance w ith enforcem ent, universal jurisdiction, and renditions. 171. See Ke llm an , Catastrophic Terrorism , supra note 48, at 555-56 (discussing the United Na tions re cent d ecision to m ake the b om bing o f pub lic buildin gs an intern ation al crim e). 172. Ed ito ria l, Germ War Treaty Redux, B OSTON G LOBE, N ov. 6 , 20 01 , at A 14 . Spring, 2003] COMBATING THE THREAT 245 3. Conclusion Criminaliz ation might be able to reach non-state actors who could avoid an inspection regime. However, the current United States laws have proved ineffective for deterring development or use of bioweapons. Bush’s propo sal to extend United States-type laws to other nations w ould likew ise be ineffective at reaching n on-state actors, and would do nothing to target state bioweap ons program s. To make the Un ited Sta tes law s effective, they w ould hav e to extend to activities prior to the actual use of a biow eapon. Howev er, such laws would still be ineffective internationally because of the potential for ineffective enforcement. M akin g the use, developm ent, or possession of bioweapons a universal crime would combine any advantages of President Bush’s plan with the added a bility of the United States to use criminal enforcement against foreign n on-state actors and possibly to justify the use of unilateral actions against state actors. IV. P ROPOSALS “[I]t is not now a question of whether [enforcement measures will be added], but o f when and how.” - Tibor Toth, chair of the Geneva talks 173 on reforming the BWC. “[There is] broad agreem ent that m ore w ork n eeds to be done to examine measures to strengthen the Biological Weapons Co nvention .” 174 - Philip Reeker, State Department spokesperson. A universa l agreem ent in the international commu nity almost exists, so action needs to be taken in order for the BWC to be effective in preventing the developm ent and use of bioweapon s. This section will analyze the various proposals that have been advanced. The proposals will be analy zed a s to their efficacy in combating the threat of bioweapons from both state and n on-state actors. 173. Ga va gh an , supra no te 1 00 , at 2 9. 174. Briefing, supra note 101, at 4. 246 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 A. BWC Protocol “[T]he draft protocol would put national security and confidential business information at risk.” - Donald A. Mahley, United States negotiator 175 to the BWC A d Hoc Group. The BW C A d Hoc Group recen tly presented its draft protocol for 176 an enforcement mechanism for the BWC. Although almost all of the nations that had participated in the negotiations supported the 177 178 protocol, including the United States’ allies in Europe and Asia, the Un ited Sta tes com pletely rejected the proposed protocol, 179 claiming in would be ineffective and unduly intrusive. The central feature of the draft protocol was an inspection regime modeled largely on th at u sed by the CW C. The criticism, which came alm ost exclusive ly from the United States, was based upon a perceived threat to industry, a thre at to national security, a nd ine ffectua lne ss. Although the Bu sh administration has denied that it is opposing the measure solely due 180 to its multilateralism, its declared reason s are la rgely refuted by an analysis of the proposal. Industry has voiced acceptance of an international inspection regime in addition to the similar CWC inspection regime, which has been shown as not threatening 181 propriety information. Threats to the security of national labs could be likely de alt with by the right to limit the scope of inspections and the right to refuse in spections, sim ilar to those in the CWC. Threats to export controls are a minimal threat if testing is limited to non-viable means. It should not be a major factor when considering the general failure of other m ore important ex port controls at regulating trade in either microorganisms or the sophisticated equipment needed to w eaponize such a gents. Therefore, many of the fears raised by the Bush administration and 175. Co op er, supra note 113, A01. 176. The text of the draft protocol and other releas es from the A d H oc Gr oup are a vailab le on-line , at http ://disarm am ent.un .org/wm d/bw c/index.h tm l (last visite d Fe b. 17, 2 003 ). 177. Co op er, supra note 113, at A01. 178. Wa shington Co nfir m s It W ill N ot B ack Ge rm W arf are Pa ct E nfo rce m en t D raf t, A GENCE F RANCE P RESSE , July 23, 2001. 179. See Kr ale v, supra note 63, at A01. The protocol has effectively been abandoned because of the U nit ed St at es’ r esp on se. A B iolo gica l Im pe rat ive , L OS A NGELES T IMES , Nov. 5, 2001, at 10 ; see Ge rts ten za ng , supra note 166. 180. See State Dep artm ent Regular Briefing, F ED . N EWS S ERV., July 25, 2001; Briefing, supra note 101. 181. See discussion supra Part III.B.2. Ba rbara H atch Rosenberg, the head of the FAS, has said that prop rietary information could be com ple tel y p rot ect ed . Ma rketplace, sup ra note 122. Spring, 2003] COMBATING THE THREAT 247 industry groups can be adequately addressed by the structure of the regime. The lack of efficacy of the draft protocol is a serious issue. Unless vigorous and unann ounced inspections are includ ed, it is likely that state programs could avoid detection, although they might be harassed by inspections. Non-state actors might be detectable, but only to the extent that they use legitimate covers or other operations that would be subject to inspection. This might reach the complex operations necessary to develop exotic agents but would likely not reach the sm all-scale facilities needed for comm on agents or smallpox. However, acceptance of the protocol would probably not h arm the U nited States, and it might deter the development of bioweapons on balance. Therefore, the protocol has the poten tial to help combat the threat of bioweapons, and does not appear to likely cause any great harm. B. Bush Proposal “Ironica lly . . . Bush this summ er renounced long-standing calls for the creation of such a mech anism for b iow eapons.” - Andrew Jack, Extent of Russian Bioweapons Programm e Generates Fear, Fin. Times (London), Oct. 26, 2001. “[It is] ironical [sic] that partially U.S. has been responsible [for blocking enforcem ent mech anism s].” - Bioweapons: a Potential Threat of Mass Destruction, T HE H INDU (India), Oct. 23, 2001, at 2001 WL 28477849. “Efforts to build a tough verification protocol to the 1972 BWC have been blocke d for years, ironically, by th e U S.” - Richard Ingham , Miracle of Biotech Could Also Breed a Monster, A GENCE F R . P RESSE , Oct. 23, 2001. Three months after rejecting the draft protocol, and in the wake of anth rax attacks on U nited States soil, the Bush administration 182 proposed an alternative to the BWC protocol. The heart of the 182. The Bush adminis t ra t i on h as denied that its proposal was motivated by the recent anthrax attacks, claim ing it always intended to propose an alte rna tive . N ich ols , supra note 248 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 Bush proposal is for all countries to criminalize the use, production, 183 importation, and exportation of bioweapon s. President Bush has also advocated expan sion of the ability of the Un ited N ations to investigate suspected bioweapons attacks and to develop an ethical 184 code of conduct for biological scientists. As the analysis above indicates, these measures would have little effect on the development or use of bioweapo ns by either state or non -state actors. Despite repeated requests by Congressional committees, the administration’s representative to the BWC negotiations has refused to provide the reasons for the administration’s rejection of 185 the protocol or advocacy for its proposals. It appears that the Bush proposal would not greatly aid the fight against bioweapons. It add ition to not helping the efforts to discourage biowea pons, the Bush adm inistration’s proposals m ay actually hurt such efforts by preventing transparency. Many scientists working for the Soviet bioweapons program felt justified in doing so, because they believed 186 the United States was pursuing a similar program. Such a belief 187 continues to be an issue in the world community, fueled by reports that the United States is pursuing offensive bioweapons 188 programs. The ab ove-men tioned quotes fro m various foreign media sources dem onstrate the surprise th at the world com munity has experienced tow ard the Bush administration’s position. It has frequently been attributed to either a general dislike of multilateral actions or to the desire to conceal an offensive bioweapons program. Both of these accusations hinder the ability of the Un ited Sta tes to address the worldwide threat of bioweapons, and the latter may encourage development of such weapons by other countries. Com bined with the inefficacy of the proposed actions, these reasons make the Bush approach an unviable option for combating the threat of bioweapons. History has unfortunately shown that the 140; Kr ale v, supra note 63, at A17. In fairness to the current adm inistration, the Clinton adm inistration also fa iled to id entify multilateral action as a key component of responding to the threat of b iow ea po ns . M ich ae l M cC art hy , US A P lans M ajor Effort to Cou nter Biow arfare, T HE L ANCET, Ma y 30, 199 8, at 164 1 (reporting on a speech in w hich Clinton cited fou r factors for ad dress ing the threa t of biow eap ons, no ne of w hich w as a m ultilate ral solu tion). 183. See N ich ols , supra no te 1 60 , at 4 A. 184. See Ge rst en za ng , supra note 166. 185. Hearings , supra note 3 (remarks of Rep. Christopher Shays, chairman of the House sub com m ittee on Na tiona l Secu rity, Vet eran s Affa irs an d Inte rnatio nal R elation s). 186. See M ille r et al., Revelation, supra no te 4 1, a t A 1. 187. See Co he n, supra no te 9 8. 188. See, e.g., Judith M ille r et al., U.S. G erm W arfare R esearch P ushes T reaty Lim its, N EW Y ORK T IMES , Se pt. 4, 20 01 , at A 1 [h ere ina fter M ille r et al., Germ W arfare] (describing “defensive” rese arch wh ich includes eng ineering m ore virulent strains o f anthrax a nd w hich has been chara cterized by m any expe rts as a viola tion of th e BW C). Spring, 2003] COMBATING THE THREAT 249 United States often responds to biological threats only after 189 catastrophes. C. Harvard Sussex Plan Although it has received much less attention than the previous 190 two plans, the Harvard Sussex Plan centers around a unique form of criminalization. In addition to requiring countries to adopt their own criminal laws, the plan would require acknowledgement of bioweapons crimes as universal jurisdiction offenses. This would create international law obligations not only to adopt criminal law s, 191 but also to vigorously enforce them. Also, all covered offenses would also be extraditable, and there would be a duty to assist other 192 natio ns in the enforcemen t of their laws. Un iversa l crimin ality may also justify extraterritorial jurisdiction of United States enforcement efforts. In contrast to the Bush plan, this type of criminalization might actually reach non-state actors and prevent their development an d use o f bio weapons. Possession of bioweapon agents would be one of the inclu ded crimes, which is not covered by the Bush plan. In addition to these benefits, the plan might encourage acceptan ce of unilateral actions in respon se to either a state actor’s or non-state actor’s use or development of bioweapons. Actions such as the United States’ strike on the alleged weapons factory in Sudan might be seen as justified and even accepted as legitimate uses of 193 force. While such a result would not necessarily follow widespread acceptance of the Harvard Sussex Plan, acceptance of bioweapons crimes as a universal jurisdiction offense would further this argu ment, and th ere is eviden ce that m uch of the world would 194 not be distressed by su ch action s. 189. Victo ria V. Sutton , A Precarious “Hot Zone”- The President’s Plan to Combat Bioterrorism, 164 M IL. L. R EV . 135, 154 (2 000) (stating that “the B iologics Act of 1906 was a response to the dea th of severa l children due to a vaccine infected with tetanus; The Com prehensive Environmental Response, Compensation, and Liability Act of 1980 was a result of the Love Canal environm ental disaster; a n d the Emergency Planning and Co m m un ity R igh t-to -K no w A ct o f 19 86 wa s a res ult of th e B ho pa l dis as ter .”). 190. Sch arf, supra n ot e 1 27 , a t 5 06 (s ta tin g t ha t “ [t ]h e H ar v a rd Sussex Program on Chemical and Biological W a rfa re Arm a m en t a nd Arm s Limitation has proposed a ‘Convention on the Prevention and Punishment of the Crime of Developing, Producing, Acquir i ng, Stockpiling, Ret ainin g, Transferring or Using Biological or Chemical Weapons’”). The Ha rvard Sussex plan has b een vigorously advocated in the United States by M atthew M ese lso n, a H arv ard U niv ers ity m ole cul ar g en eti cist . Biow eapon s, supra note 2. 191. Sc ha rf, supra no te 1 27 , at 5 06 . 192. Id. 193. Id. at 494 (noting that a negative public reaction did not occur until evidence emerged that the fa ctory w as n ot invo lved in chem ical or b iological w eap ons, su ggest ing m uch o f the world wou ld alrea dy a ccept u nilate ral m ilitary ac tion in t he face of a bio wea pon s thre at). 194. Id. at 494-95. 250 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 V. C ONCLUSION Biological weapons represent a significant threat to the security and welfare of the United States and the world in general. A n estimated twelve states have existing biowe apons program s, which include weaponized forms of the most dangerous agents such as smallpox. A release of these agents, or an attack with su ch weapo ns, would lead to devastating results. Ho wev er, it appears that such weapons could be used by states in a conceptually similar manner as nu clear we apon s, either as a strategic asset for international diplomacy or as a deterrent against other weapons of mass destru ction. History has taught ha rsh lesson s that battlefield use of such w eapon s is not effective and could have dire and un fore see n effects. Non-state actors represent a different threat than states. Other than religious terrorists, most groups would not attempt to develop or desire to use such weapons. The re ligious terrorist groups that have tried to acquire and weapo nize biological agents have also failed to achieve the capabilities they have desired. Although a potential exists for the transfer of agents from state to non-state actors, it is likely that non-state groups wo uld be lim ited in their ability to obtain agents other than the more common pathogens such as an thrax or plague. Without th e sophisticated facilities to process or wea ponize such agen ts, it is currently unlikely tha t such a group could cause any greater harm with biological agents than it could with conven tional weapon s. Three types of solutions have been proposed in the face of these two threats. First, an inspection regime may be som ewhat effective against state actors but would be less effective again st non -state groups. If non-challenge visits could be perform ed without significant notice, it may be possible to discover or deter the use of large facilities for bioweapons development. While this may not prohibit state-based bioweapons, it would raise the costs of developing them. Even if it did not hinder state programs, it might encourage transparency and redu ce the perceived needs for the development of bioweapons. An inspection regim e may also reach non-state groups that were using legitimate facilities as covers for their operations. By discouraging state programs, it would also minimize the risk of transfers from states to non-state actors. Concerns over national security and confidential information being compromised by an inspection regime are overstated, and the benefits of a well-designed program shou ld outweigh the costs. Restrictions on equip ment h ave failed so far to be a barrier to bioweapons development, but they may serve a role in the future. It is impossible to limit access to many of the comm on agents that Spring, 2003] COMBATING THE THREAT 251 would be used in bioweapons because they are ubiquitous in the environm ent. Restrictions on the equipment needed to weaponize such agents have the potential to thwart the development of bioweap ons. Many experts believe engineering issues are the prohibitive step in weaponizin g biological agents. Despite the efforts of the Australia Group, sales of this type of equipment continue. Even if these restrictions were effective in combating the development of biow eapons by n on-state actors, they would likely do little to inhibit a sta te fro m bringing its resources to bear on such development. Absent universal jurisdiction, criminalization would likely do little to combat the threat of bioweapons. Current United States criminalization has proved large ly ineffective, therefore little would be gained from other states’ adoption of similar measures. Even if harsher measures were advocated, enforcement in other states may be ineffectu al, possibly intentionally so. There is the potential for international supp ort for the classification of bioweapons offenses as universal crimes leading to universal jurisdiction and other mechanisms for enhan ced prosecu tion. This m ay allow effective criminalization of the offenses an d also poten tially lead to acceptan ce of unilateral actions in response to the threat of bioweap ons. The re have b een three propo sed sets of actions to the threat of bioweap ons. The BWC Ad Hoc G roup has proposed a d raft protocol for an in spection regime . Such a regime would likely discourage state-based progra ms, encoura ge transparen cy, and m ay in hibit non -state actors. The B ush a dministration’s proposa l centers around encouraging non-universal criminalization and support for the Australia G roup’s restrictions on sales of equ ipm ent. This would likely hav e little effect on state-based programs, but the restriction on equipment, if effective, ma y ha mper non-state actors. The Harvard Sussex Program, which has advocated universal criminalization, wou ld be m ore effective in reaching n on-state actors than Bush’s plan which also advocates for criminalization. Although it would n ot directly get to state-based program s, it could poten tially lead to international no rm s against bioweapons and acceptan ce of unilateral actions against those who are developing bioweap ons. None of the three proposals would be wholly effective at comba ting the threat of bioweapons. Inspections would offer some discouragement of state-programs through fear of detection, increased costs, and decreased motivation to develop bioweapons due to transparency. Additionally, equipment restrictions and universal criminalization may inhibit non-state actors in their quest to develop effective biowea pons. The use of all three approaches— 252 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 international inspections, universal criminalization, and equipment restriction s— is necessary to seriously combat the threat of bioweap ons. Therefore , the ideal response would be to combine the CW C-type inspection regime from the BWC protocol with an expanded Australia Group-type restriction on equipment and a Harvard Sussex-type universal criminalization. The potentially catastrophic consequences of bioweapons demand a co mprehensive response to this threa t. Access to biological agents and equipment, detection of bioweapon facilities, and universal criminalization of possession and development of bioweapons are all needed to adequately combat the proliferation and utilization of biological weapo ns.
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