SEARCH, SENTENCE, AND (DON'T) SELL COMBATING THE THREAT OF by uoy21072

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									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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