Associate Deputy General Counsel for International Affairs, U.S. Department of Defense. Opinions, conclusions, and recommendations expressed or implied herein are solely those of the Author and do not necessarily represent the views of the U.S. Department of Defense or any governmental agency or civilian institution. While credit is conscientiously and faithfully provided throughout this Article for every thought not my own, it is nevertheless important to step back from specific citations to acknowledge that my framework of thought for this Article has been significantly shaped by daily interaction with my policy, military, law enforcement, and legal colleagues throughout the U.S. Government.
Terrorism in any form is pure evil. Terrorism that uses weapons of mass destruction1 is an unconscionable evil that envisions human suffering and murder on potentially apocalyptic scales. WMD terrorism is one of the most devastating threats to humankind in the Twenty-first Century.2 WMD terrorism is a transnational threat that endangers every person in the world, and states must work together to construct an effective international approach to prevent it. However, the sheer volume and ubiquitous nature of global trade and commerce, the interdependence of states whose cooperative efforts to prevent WMD terrorism are strained by issues of national sovereignty and divergent regional agendas, and the eclectic collage of existing international andPage 993 national laws and frameworks3 intended to prohibit and prevent WMD proliferation and terrorism, make it extraordinarily difficult to prevent terrorists and rogue states from acquiring WMD technology and capabilities.
To add a real-world dimension to the extraordinary legal and operational complexities of combating global WMD proliferation,4 imagine that shipping documents and contracts reveal an apparently lawful transfer of 120 ounces of the biological toxin BTx3 1:36 from a medical supplier in one state to an overseas medical research facility.5 BTx3 1:36 is used for legitimate medical research, but is a perniciously deadly biological toxin. The port authorities of the transferring state report the shipment of this dangerous cargo to its domestic federal law enforcement agency. A third state, however, has classified scientific information indicating that the order contains twice the amount of the toxin the receiving research facility could use for legitimate research. A fourth state has sensitive law enforcement investigative information that the terrorist group FTO-33a,6 a particularly vicious and active splinter group of al-Qa'ida, operates out of an authoritarian, military-dominated fifth state. A sixth state has classified intelligence intercepts that FTO-33a has been trying to obtain approximately sixty ounces of BTx3 1:36. The research facility refuses to justify its order, simply stating that it has the legal right to purchase BTx3 1:36 for legitimate medical research. University researchers of a seventh state have open source information indicating that just eighteen ounces of BTx3 1:36 evenly dispersed between Washington National, Baltimore-Washington, and Dulles International airports could likely kill over 90 percent of the population of the greater Washington, D.C. metropolitan area in six to ten days as well as tens, possibly hundreds, of millions of people around the world. An eighth state has highly classified human source intelligence that FTO-33a plans on attacking Washington, D.C. during its next annual National Cherry Blossom Festival, which is one of the most popular tourist events of the year in Washington.
Furthermore, imagine a second scenario: sensitive law enforcement investigative information becomes available to a state indicating that thePage 994 medical supplier of BTx3 1:36 in another state is a known terrorist sympathizer and has reportedly offered sixty ounces of BTx3 1:36 to FTO-33a. Scientists of a third state have classified scientific information that BTx3 1:36 could be shipped in liquid, powder, solid, or vapor form, and that six ounces of BTx3 1:36 powder could be safely packaged in an airtight plastic cigar storage tube. A fourth state has information from classified intelligence intercepts that indicates that four ten-ounce vials of BTx3 1:36 have been secreted on board four different container vessels that are somewhere on the high seas bound for four different ports around the world. A fifth state has highly classified human source intelligence that two of the ten-ounce vials will be shipped to Washington, D.C. by air sometime in the next week.
Although these two scenarios are fictional and perhaps difficult to contemplate, they realistically demonstrate the devastating threat of WMD terrorism, as well as the legal and operational complexities in developing an effective mechanism for combating global WMD proliferation in a world dominated by global trade and commerce. In 2005, for example, there were 39,932 ships in the world merchant fleet (consisting of ships of 300 gross tons or more) with a capacity of carrying 880 million tons of cargo (deadweight tonnage) stored in upwards of 12,784 million cubic feet of containers.7 World seaborne trade in 2005 reached 7.11 billion tons of goods loaded, and maritime activity reached 29,045 billion ton-miles (one ton of freight moved one mile).8 In 2003, more than 48 million cargo containers moved between major seaports, and more than six million arrived in the United States.9 Given this magnitude of global trade and commerce, how does a state, or group of states, even begin to search for four ten-ounce vials of BTx3 1:36 hidden on board four different container vessels that are somewhere on the high seas bound for four different ports around the world? Or, where and how does the United States begin to search for two ten-ounce vials that are being smuggled by one of over 550,000 passengers that arrive at one of the three major Washington, D.C. metropolitan airports every week?10Page 995
Moreover, once on the ground in the United States, how do U.S. law enforcement authorities sort through more than 80,000 million ton-miles of domestic freight that move around the United States every week?11 Clearly, multinational cooperation and information sharing are a critical foundation for coordinating cargo and passenger searches of this magnitude. However, multinational cooperation filtered through language barriers, time zones, national political agendas, and trade alliances is also a practical challenge. More than 93.5 percent of the total deadweight tonnage of the world merchant fleet was controlled in 2005 by approximately thirty states.12 Moreover, in any given situation, any number of these states and jurisdictions around the world may be involved. These states and jurisdictions need to develop the legal basis and provide the necessary resources to interdict items of WMD proliferation concern. In the first scenario above, for example, the transfer of BTx3 1:36 is legitimate on it face. What international or national laws or frameworks are in place to scrutinize the legitimate transfers of goods that could be diverted for illegitimate purposes, i.e., dual-use13 goods that could be used for peaceful purposes or terrorism? What prohibits the transfer of BTx3 1:36 to a legitimate medical research facility if the amount simply seems excessive? If it is not a prohibited transaction on its face, then what legal authority permits interdicting the shipment if it is suspected that the material may be misused or diverted to terrorists? Eight states are involved in the first scenario and up to nine states are involved in the second. When a suspect transaction occurs in one state, how do other states know when to share intelligence or non-government, open-source, or law enforcement information? What procedures and legal authorities are in place for states to request and share intelligence and law enforcement information? What internationalPage 996 frameworks or laws support a global WMD nonproliferation14 program?
What national laws apply when multiple states are involved? When a suspect shipment is on board a ship or aircraft, what national and international legal authorities permit a state to interdict, inspect, and possibly seize illegitimate cargo? And finally, though there are many more questions, when does a WMD terrorist threat invoke a state's inherent right of self-defense?
These illustrative scenarios and questions underscore the extraordinary importance of nation states working together to create an effective global WMD nonproliferation regime. This Article details one of the major international cooperative efforts to combat global WMD terrorism-the Proliferation Security Initiative (PSI). It first summarizes the genesis and tenets of PSI, and then describes how PSI activities are intended to coordinate states' WMD nonproliferation activities, as well as leverage existing international and national laws. This Article also provides an introduction to the existing legal regimes and frameworks relevant in the PSI context for intermodal (ground, maritime, and air) interdictions of WMD items of proliferation concern. However, since the applicable laws or frameworks for any potential interdiction are highly...