A Precarious 'Hot Zone' - The President's Plan to Combat Bioterrorism

• Author: Victoria V. Sutton
• Pages: 02

2000] PRESIDENT'S PLAN TO COMBAT BIOTERRORISM 135

A PRECARIOUS "HOT ZONE"-

THE PRESIDENT'S PLAN TO COMBAT BIOTERRORISM

VICTORIA V. SUTTON1

1. Introduction

   The President, since taking office, has "made the fight against terrorism a top national security objective."2 President Clinton announced on 22 May 1998 that he "is determined that in the coming century, we will be capable of deterring and preventing such terrorist attacks."3 The President is also convinced that we must also have the ability to limit the damage and manage the consequences should such an attack occur."4 With this most recent announcement, the President introduced Presidential Decision Directive 62 (PDD 62), which is to "create a new and more systematic approach to fighting the terrorist threat of the next century"5 and to clarify the roles of agencies and departments to ensure a coordinated approach to planning for such terrorist induced emergencies. However, as yet no formal procedure exists for coordinating federal, state, and local forces should we have a bioterrorism event, or an effective plan for participation of the nation's military forces in response to such an event.

   While nuclear, chemical, and biological weaponry all fall within the general classification of WMD; until very recently, nuclear weaponry has dominated planning and discussion. Today, however, it is increasingly recognized that chemical and particularly biological weapons represent much more credible threats in the hands of terrorists than do nuclear ones. This follows for many reasons, for example, ease of maintaining secrecy in

   preparation of the weapons, ease of production and delivery of the weapons, ease of obtaining wide dispersal of the weapons-particularly in the case of biological weapons. It is also true that modern genetic engineering carries with it the specter of modification of familiar weapons species such as anthrax and smallpox into forms against which all our vaccines and other defenses would be worthless.

   This current planning is directed against all weapons of mass destruction (WMD), which include technological as well as specifically chemical and biological activities. This article will focus on a plan for biological and chemical weapons that should be distinguished from the approach to a plan for all other technological threats. While the United States skills in planning to combat nuclear weapons and other technological weapons have been practiced throughout the cold war, our skills in beginning to comprehend and meet the threats of chemical and biological warfare on a domestic level have only recently begun to be developed fully.

   Although PDD 62 is the most recent formal action, the planning for responses to domestic bioterrorism is shaped by prior presidential directives, statutes, and U.S. constitutional guidance. The planning for the prevention, detection, and actual encounters with bioterrorism now has actually begun, but as separate departmental missions under the auspices of individual agencies and departments. These initial planning and funding activities have been examined through a number of Government Account Office (GAO) investigatory reports at the request of Congress, criticizing the lack of coordination. The implementation of any emergency response capability, fortunately, has not been tested on a major scale as yet, and this article addresses the legal status of the coordination of federal agencies, the military, as well as state and local governments under the constraints of statutes, regulations, case law and the U.S. Constitution.

   Richard Preston, a science thriller novelist, produced a response scenario to a bioterrorism event in his 1997 book, The Cobra Event.6 The New York Times reported that "Mr. Clinton was so alarmed by . . . The Cobra Event . . . that he instructed intelligence experts to evaluate its credibility."7 More alarming perhaps even than its suggested biological possibility, is the lack of statutory clarity that would be essential for effective implementing of a strategy for the United States in terms of preparedness and emergency responsiveness. This article examines the present status of federal, state,

   and local preparedness and proposes such changes to statutes and federal regulations and to the implementation of currently applicable statutes to enable our federal, state, and local resources to be effectively used in research, preparedness as well as in emergency responsiveness.

2. Who Is In Charge?

   The President's strategy has been to combine threats of all WMD into a single framework for preparation and planned response.8 The designation of a lead agency or department for coordination appears to fall within the responsibility of the newly created Office of the National Coordinator for Security Infrastructure Protection and Counter-Terrorism, working "within the National Security Council and report[ing] to the Assistant to the President for National Security Affairs."9 This office is to give "advice on budgets . . . lead in the development of guidelines that might be needed for crisis management, . . . oversee the broad variety of relevant policies and programs included in such areas as counter-terrorism, [and oversee the] protection of critical infrastructure and preparedness and consequence management for [response to] [WMD]" under PDD 62.10

   The separation of WMD between technological weapons on the one hand and chemical and biological weapons on the other is suggested in the introduction to this article. Moreover, a separation of leadership among preparedness, research, funding, and planning activities and the emergency response activities, matched with respective missions of the departments and agencies would provide the most effective use of our resources. Perhaps a lesson from the Cherokee tribal custom of designating a wartime chief and a peacetime chief, where, "war was decided upon, its conduct was turned over to the town war organization,"11 should be considered in structuring the leadership for these two activities. That is, preparedness and research are very different activities and require very different skills as compared to the activities and skills of emergency response. Whether the proposed separation is a workable plan is examined in the following sections.

   1. Preparedness, Research, Funding and Planning-Who is in Charge?

      Recent GAO testimony before Congress describes the scope of combating foreign-origin as well as domestic terrorism and makes recommendations for crosscutting and coordination management,12 which repeats many of the same criticisms included in a GAO report issued just over a year earlier.13

      The second report recommends that the Office of Management and Budget (OMB) conduct a crosscutting review, identify priorities and gaps and identify funding. However, the scope of the responsibility requires the staffer in OMB charged with this duty, to fully understand the scientific merit of programs spanning approximately twenty-two departments and agencies, as well as the legal and interagency constraints. In addition, this OMB staffer must compose a line-item budget for each agency identifying those items which fit into the comprehensive, government-wide program, which will probably be reviewed by dozens of congressional committees and subcommittees that claim departmental jurisdiction-not program jurisdiction.

      Before the line-item, crosscutting coordination can be accomplished, as envisioned by the GAO, Congress must also agree to a joint appropriations hearing, with each department's and agency's appropriations committee coming together to receive a joint presentation of the coordinated budget.

      This is not an unprecedented achievement. In an historical joint meeting of congressional committees, the Mathematics and Science Education Initiative of the Bush Administration was presented to two congressional committees as a line-item program crosscutting twelve departments' budgets in a comprehensive, coordinated program, which identified priorities and avoided gaps and overlaps in funding and programming.14 This type of joint hearing would ensure that duplication of terrorism research and

      development programs would not occur as they did in one instance identified by the State Department where one congressional committee established a program and approved funds for that program while an identical program already existed and was funded through another congressional committee.15

      1. Federal Coordination and Leadership

         The design of a plan to confront the threats of bioterrorism, with a logical division of leadership between the planning and the emergency response responsibilities could follow previous statutory designs having demonstrated efficacy. Current statutory mechanisms are currently in place that could provide a framework for the recommendations made by the GAO.

         The GAO recommendation that these responsibilities be assigned to the OMB represents an overwhelming range of duties. The performance of such crosscutting, coordinated functions was, in fact, performed in a previous Administration by a well-coordinated assemblage of federal employees and appointees, meeting once a month over an annual planning period enabled by the Federal Coordinating Council for Science, Engineering and Technology (FCCSET) statute.16 During the period from 1989 to 1992, the implementation of this statute required three Ph.D.-level staff from the Office of Science and Technology Policy, one staff member from the OMB, and two levels of coordination among staff and senior policy appointees from twelve or more agencies and departments involved in each of the crosscutting programs.17

         The GAO has identified twenty-two departments and agencies that should be involved in the crosscutting, coordinated plan to combat terrorism.18 The use of the statutory FCCSET mechanism fluctuates with the priorities of the Director of the Office of Science and Technology Policy. During the GAO reporting period, the...