Biological terrorism: legal measures for preventing catastrophe.

• Author: Kellman, Barry

Biological terrorism is a truly despicable subject, raising nightmares of primal fear. Disease -- plague, smallpox, and other decimating maladies -- is dire trauma embedded in humanity's collective consciousness. Now, when the threat of thermonuclear holocaust may be ebbing, a few zealots or criminals can kill thousands (or more) and destabilize social order by revealing that no government, even that of superpower America, can protect its citizenry. A biological attack means that everyone is vulnerable. This is terrorism nonpareil.

This Article's agenda is modest: Set forth legal initiatives that might reduce the risks of bioterrorism, recognizing that those initiatives must be combined with nonlegal policies. For example, more money to develop sensors and to train medical personnel could be advantageously spent without proposing or amending legislation or regulations. Legal initiatives should be seen, therefore, as only part of a larger policy response to reduce terrorism opportunities, strengthen detection, focus resources, and deter those terrorists who are averse to harsh penalties.(1)

The agenda here is also overt. Law's contribution to preventing bioterrorism, though limited, is crucial. And time, unfortunately, is not on the side of the angels. This Article, therefore, is a call to action.

Part I of this Article synthesizes the vast literature on bioterrorism,(2) describing various diseases that could be used and how those diseases might fulfill different objectives. Part II and Part III develop this Article's thesis that threats of bioterrorism call for a two-dimensional set of carefully tailored policies to reduce biological threats, but do not justify radical new overtures. Proposed regulatory modifications can restrict the availability of useful materials and equipment and increase the cost and likelihood of detection. Part II advances a regulatory agenda, mindful to not over-burden the bio-pharmaceutical industry, that would raise barriers to obtaining pathogens and weaponization technology. Since these regulatory measures are not perfectly prophylactic (i.e. terrorists might still gain deadly agents), modifications of law enforcement policies should detect, investigate, and stop terrorists who overcome the regulatory barriers and prepare weapons. Part III discusses the unique problems that clandestine biological terrorism presents for law enforcement and recommends measures to better identify bioterrorism threats without overstepping civil liberties and privacy rights.

Put simply, the best strategy is two-pronged: Deny access to biological weapons capabilities, and-if capabilities are obtained -- apprehend the terrorist before attack. Legal measures offer no guarantee for preventing bioterrorism, but the measures described here might substantially diminish risks when combined with enhanced pathogen-relevant research and development, improved planning and communication among officials, and advanced intelligence capabilities.

Many topics tangentially relevant to biological terrorism are not discussed here, either because law cannot significantly address them or because, even if addressed, law cannot materially diminish the risks of biological terrorism. This Article will not discuss the broad array of issues that span counter-terrorism policy.(3) Neither will it assess the merits of promoting enhanced research on pathogenicity nor consider the appropriate levels of stockpiled vaccines; these questions are better addressed by the medical and pharmaceutical communities.(4) This Article will not discuss the need for enhanced foreign intelligence; crucial information is not publicly available, and legal measures would not make much difference.(5) Nor will this article address preparations to respond after an attack happens; those measures are necessary but do not serve to prevent the attack.(6)

A vast set of issues, substantially outside the scope of this Article and meriting separate attention, concerns the international proliferation of biological weapons and negotiated efforts to stanch their spread.(7) Russia had an active biological weapons research program into the early 1990s; many experts believe that the Russian military actively pursued a biological weapons program thereafter and may still be doing so.(8) Even if Russia is not actively pursuing biological weapons capabilities, there, is the risk that its facilities are leaking equipment and perhaps even pathogens to other States or terrorist groups.(9) Iraq's biological weapons program was uncovered by United Nations inspectors in 1995.(10) Many experts believe that Iran has a military biological program even if it does not now have an offensive weapons capability.(11) Other countries currently suspected of having programs include: China, Taiwan, North Korea, Syria, Egypt, Cuba, Israel, former Soviet States, the United States, and Japan.(12) According to recently-substantiated allegations, a 500-liter medical fermentation device was sent from the United States to a pharmaceutical plant in China suspected of manufacturing chemical and biological agents for military purposes.(13) Lastly international treaty negotiations are proceeding actively for a new protocol to the Biological Weapons Convention,(14) but that protocol does not explicitly confront threats of terrorism.(15)

1. UNDERSTANDING BIO-TERRORISM

   Because a catastrophic bioterrorism attack has not yet happened, trying to understand the phenomenon entails some speculation based on reasonable extrapolations both from the scientific understanding of pathogens and from the social science understanding of terrorist behavior. There has been only one notable effort to develop and employ biological capabilities for terrorist purposes, which was by the Japanese cult Aum Shinrikyo.

   Aum devoted vast sums of money, time, and considerable expertise to the task of making biological weapons, but it was not successful. Before puncturing bags of sarin nerve gas on Tokyo subway trains on March 20, 1995, killing twelve people and injuring more than 5,000, the cult had sought to acquire a wide range of weapons, including biological weapons. In April 1990, Aum attempted to attack the Japanese parliament with botulinum toxin aerosol.(16) In 1992, Aum sent a mission to Zaire to assist in the treatment of Ebola victims in order to find a sample of the Ebola strain to take back to Japan for culturing purposes. In June 1993, the cult tried to release poison at the wedding of the crown prince. Later that month, Aum attempted to spray anthrax spores from the roof of a building in Tokyo.(17) All these attack,; were unsuccessful and resulted in no casualties. The consequences might have been drastically different had the weapons been properly disseminated.(18)

   The cult built weapons under the guidance of well-trained biologists and chemists. They created a sophisticated biological research facility without attracting the attention of the Japanese or other governments. When Japanese officials investigated Aum's compound after the 1995 attack, they found large amounts of equipment indispensable to cultivating bacteria and viruses, peptone (a substance used to cultivate bacteria), and books and materials on the production of botulism, cholera, and dysentery. At Aum's site in Naganohara, officials found a four-story concrete facility equipped with a "clean room" with specialized ventilation systems and a sealed room to protect cultivated bacteria from leaking. In connection with these operations, Aum produced illegal drugs for their own use and for sale to others.(19)

   In January 1995, an Oregon company sold Aum molecular modeling software that simulates molecular experimentation without the need for actual laboratory experimentation. This software is covered by export restrictions to countries such as China but not to Japan. Aum could have used this software to test theoretical designs for toxins. In March 1995, Aum supporters contacted a Missouri company that produces computer software for use in designing new therapeutic drugs but that can also be used to research and develop biological toxins. Although it harbored suspicions, the Missouri company installed software on a computer provided by Aum.(20) Five days before the Tokyo gas attack, authorities discovered three attache cases containing a small tank to hold liquid, a small motorized fan, a vent, and a battery. The cult had at least two radio controlled drone aircraft, and they were seeking hundreds of small fans as well as thousands of small serum bottles.(21)

   The Aum Shinrikyo experience raises several questions addressed in the remainder of this Part. First, why would a terrorist use biological weapons? Second, what pathogens could or would likely be used? And third, could an attack be concocted?

   1. Why Attack with Biological Weapons?

      Why would anyone use disease to cause mass death? How difficult is it to use biological agents as weapons, assuming the motivation to do so? If biological weapons are used, what casualties can be reasonably expected?

      Biological weapons have three advantages from a terrorist's perspective. First, they (as well as chemical weapons) offer an optimal death to cost ratio. Second, they are virtually undetectable and can be handled with relative ease by properly trained and inoculated persons. Third, they offer the potential for mass panic that may uniquely serve a terrorist's purposes.

      1. Inflicting Casualties

         If a terrorist wants to kill thousands of people, biological weapons merit serious consideration. A nuclear weapon, by comparison, can certainly create far more devastation, but making a nuclear weapon is ilar more difficult and expensive, and smuggling it poses a far greater risk of detection.(22) At the other end of the weapons spectrum, firearms are inexpensive and readily available, but they have the capacity to kill only a few dozen people before being stopped. Explosives present more technical obstacles than...