Suzanne Spaulding

The threat of a bioterrorist attack opens up many difficult legal questions; the nature of the issue, itself, is set in a unique legal environment. Bioterrorism cross-permeates into the realms of public health, criminal law, national security, the environment and the rules of war, among others. And since it cannot be pigeon-holed neatly into any single category, there is a need, at the domestic level, for the effective coordination of resources, personnel, training and equipment among all relevant authorities at the federal, state and local levels.

The problem is that the applicability of such resources and its entailing consequences have not been thought through thoroughly. Drawing from the National Commission on Terrorism (otherwise known as the Bremer Commission), there are four components of the legal aspect of bioterrorism: (1) Foreign intelligence; (2) Law enforcement; (3) Military; and (4) Public health.

With foreign intelligence, it is unclear whether the FBI, the primary agency in this field, can task information such as satellite imagery for law enforcement purposes. Traditionally, it is not uncommon for foreign intelligence to be applied to the prevention or response of natural disasters but there is no precedent for use of information in the event of an intentional mass casualty catastrophe. The tasking of intelligence information also raises serious civil liberties issues - the acquisition of such information, aside from the uncertainty as to whether it can be tasked for foreign citizens in the U.S., much less U.S. citizens in the U.S., brings into play Fourth Amendment protestations from unreasonable search and seizure. A further complication is the laborious and time-consuming type of coordination between intelligence and law enforcement.

Constitutional rights come into larger focus in law enforcement. The profiling of individuals has already triggered a national debate but can this be legitimately justified in the face of a bioterrorist threat? And in the event of an imminent attack, how broad may a sweep search of person and property be? What would be the standard of suspicion? "Reasonable belief?" "Probable cause to believe?" There is no clear answer. If a quarantine becomes necessary, at what point would personal liberty be severely restricted? And how may interstate commerce be preserved if roads, airports and waterways have to be closed?

The Posse Comitatus Act prohibits the military from intervening in civilian affairs. However, there are numerous exceptions. It is unclear what level of force may be used by the military in the event of a bioterrorist threat or attack. Army Brig. Gen. Bruce M. Lawlor, Commander of Joint Task Force-Civilian Support has listed a number of other ambiguities regarding the role of the military in this context. These include balancing priorities when resources are low, sources of funding, and the fact that the Task Force does not enjoy jurisdiction in all 54 U.S. states and territories. There is also little guidance as to how it may be resolved if, for example, an individual refuses decontamination for whatever valid reason, or how respect for social or religious beliefs or practices may be maintained in the face of a mass contamination of bodies due to a bioterrorist attack.

The greatest need for public health review stems from its antiquity. The laws date back to 50-70 years ago, and thus, do not adequately contemplate modern scenarios of probable significant contagious outbreaks. They also vary tremendously from state to state. There is a general consensus that a review and update have to be made, even to the extent of harmonizing the laws in some way, at least in relation to the threat of bioterrorism, to clarify the issue. Other issues have to do with the tort liability of states - what would the standard of care be in a threat or occurrence of a bioterrorist attack? What level of liability would be incurred in the breach of any duty of care? The Centers for Disease Control have acknowledged the deficiencies within public health law and will be reviewing the regulations next week at a conference.

Barry Kellman

There exists an inability of the international legal system to deal with bioterrorism. It is not an international crime, and there is no prohibition against private persons to possess weaponizable pathogens, develop biological weapons capabilities, acquire its critical equipment, transfer its precursors and aid another's program by contributing expertise and financial support. There is also no international obligation for legal assistance and cooperation, no explicit assignment of tasks to international institutions or formal modalities for links among national law enforcement authorities. International legal initiatives must include the criminalization of the release of pathogens with intent to cause harm. In addition, the unauthorized possession, transnational movement of weapons agents, precursors and critical equipment as well as the provision of material, financial or intellectual support in the endeavor should be a crime. Regulation of pathogens and critical equipment should cover the "registration" of the legal possession or use of regulated items, prohibit transfers to unregistered persons, and require the tagging or tracing of equipment.

There should be an international model which would harness the capabilities of INTERPOL, the World Health Organization (WHO) and the World Customs Organization (WCO) in cooperatively tracking the movement of pathogens or critical equipment, international policing, and anti-smuggling which would all enhance national law enforcement measures. Although there are analogous instrumentalities to aid such efforts, there is none for bioterrorism.

In terms of tracing pathogen movement, classification and labeling could begin with the Centers for Disease Control or WHO list for pathogens and the Australia Group list for critical equipment. Other analogous systems for consideration could be the WHO Recommended Classification of Pesticides, the WCO Harmonized Commodity Description & Coding System, or the WCO Recommendation re Substances Controlled Under the Chemical Weapons Convention. There should also be an estimate system in place to restrict supplies to legitimate needs; the International Narcotics Control Board acts as a good model. An import/export certification regime should be established wherein both the sending and receiving States must authorize international shipments of pathogens or critical equipment.

International cooperative policing would involve tagging and tracking (based upon the INTERPOL Weapons and Explosives Tracking system), data exchange on bioterrorism capabilities (such as the INTERPOL-WCO-UNDCP drug data sharing project), cooperation of technical capabilities and reciprocal representation at each organization's meetings (such as the INTERPOL-Basel Convention relating to the movement of hazardous wastes and the INTERPOL-IAEA cooperation in the traffic of nuclear materials) as well as a global monitoring system incorporating the use of field surveys and satellite images (such as the WHO Satellite Surveillance Networks).

An anti-smuggling system would engage information gathering (such as the WCO Customs Enforcement Network), multilateral cooperation and assistance (such as the WCO Recommendation Concerning Action Against Illicit Cross-Border Movement of Nuclear and Hazardous Material), provision of training and equipment (such as the Americas Counter Smuggling Initiative), engagement of the private sector (such as the Business Anti-Smuggling Coalition), and possibly investigations.

Enhancement of national law enforcement would be modeled on the Convention Against Illicit Traffic in Narcotic Drugs. Efforts would be made to harmonize criminal laws so as to resolve 'dual criminality' issues, to enact consistent penalties, strengthen import/export laws, expand the bases of jurisdiction (whether universal or based on the protective principle and enable investigations.

To encourage private sector cooperation, reporting obligations should be minimized, the protection of confidential business information should be assured, and there should be preferences or allowances for compliance.

Questions and Answers

A question was asked about the impact of Professor Kellman's proposed international model on domestic pathogen acquisition and development programs with the presence of foreign terrorists in the country, and whether it would undercut existing international regimes such as the Australia Group. Ms. Spaulding answered the first question by suggesting that domestic suppliers get to know their customers better, especially when dual-use equipment is at play. As to the second question, Professor Kellman hoped that the Australia Group would be more global and that his proposed international model would only serve to reinforce established regimes.

A briefing participant proposed a more enhanced use of high capacity computers in the private sector. The integration of tax, actuarial and other information into computerized systems would serve better tracking purposes although the issues of due process and civil liberties in this respect was cautioned by Professor Kellman. How the information was obtained; how it would be used in court, if accepted at all; how to verify the information and how to adequately balance the accused's rights against national security concerns were all important considerations.

One participant qualified the use of international metaphors by Professor Kellman. He remarked that as opposed to narcotics, for example, pathogens are organic entities that grow and live, and there are different levels of risks assumed in the weaponization process by state-sponsored terrorism and group terrorism. The Australia Group categorization of P3 and P4 lists, for example, although useful, may prove limited when applied to smaller scales of pathogen production. On the flip side, however, the more general the list, the more vague it is likely to be, and the less likely it will be taken seriously. Domestically, the "know your customer" guideline must be reinforced with some stronger measure of applicability such as legal authority. By analogy, a binding force of that sort will have the effect of turning export controls inwards.

One participant raised the issue of states with little resources to handle the threat of bioterrorism. How would such a state be dealt with, for example, if it had knowledge that a real cross-border bioterrorist threat existed on its home soil? Professor Kellman acknowledged that this was a gray area and that the onus lay on the particular state(s) to disprove the suspicions held by whichever international law regime in question. State resistance to verification would only enhance those suspicions. In this context, Ms. Spaulding cited Congress's 1996 category of states "not cooperating fully". The Deutsch Commission, however, found that the label was not being used appropriately; that it was only a political tool of convenience used by the State Department to accuse Afghanistan of substantively being a state sponsor of terrorism yet avoid recognizing the Taliban as the country's legitimate government at the same time.

A member of the audience argued that Professor Kellman's drug interdiction analogy was illusory since the process of drug production is more complicated, extensive and on a bigger scale than the production of pathogens which is more subversive and done on a smaller scale, making detection less easy. Professor Kellman, in reply, took issue with Mr. Dudley's point about the production of pathogens being necessarily easier than drugs but agreed with his larger point concerning the significant risks of dangerous pathogens slipping detection and discovery. Bruce Zagaris, Berliner, Corcoran & Rowe, wanted to know where non-governmental and international organizations stood in combating the threat of bioterrorism, or whether the matter was even on their agenda at all, a question which received an emphatic and unfortunate "No" by Professor Kellman, as far as his research had revealed. Scott Conwell, Fried, Frank, Harris, Shriver & Jacobson, posed the question of where the dissemination of technical information intersected with the right of speech? Professor Kellman's reply was that it all depended on the legal definition of key words - what would the scope of "technical information" cover? Would casual conversation be "dissemination" of such information? The answers to these are unclear, as they it stands. Ms. Spaulding added that the complexities were compounded by the mass distribution of information with the rise of the Internet.

A statement was made encouraging the U.S., with its technology, to lead the rest of the world by example. If the U.S. could show the way by effecting an efficient domestic regime, then it would be much easier to propagate the concept and application to the rest of the world. Col. Guy Roberts, U.S. Navy, asked that since the threat or act of bioterrorism ranged from simple to complicated, especially with advances in genetic engineering, what is it that is truly needed to deal with the problem? Would some sort of organizational super-structure need to be established to adequately manage the threat? Ms. Spaulding agreed that there was some organizational help that was in order and various recommendations have already been made, such as by the Hart-Rudman and Gilmore Commissions, and the Center for Strategic and International Studies (CSIS) Comprehensive Strategy report on Chemical, Biological, Radiological and Nuclear Terrorism. She emphasized that although a lot of money had already been invested and that a lot more will probably be needed, particularly in the public health arena, legal analysis of the inherent difficulties of the matter is not resource-intensive and should be carried out in more depth. Professor Kellman cautioned that legal solutions should not be considered in isolation and need the support of technical, diplomatic, and financial expertise, among others. A good model of public/private sector cooperation to follow can be found in the environmental law arena although adaptations and adjustments would obviously have to be made to be applied in the security context.

A question was posed as to how serious the threat needs to be to justify the resources spent on efforts to prevent and respond to bioterrorism. Ms. Spaulding conceded that no comprehensive domestic threat assessment has yet been undertaken but some quarters say that it is impossible since the impact would be too huge to quantify if a full blown mass attack were to take place. Ms. Spaulding reiterated that where legal issues were concerned, there was little need to undertake any threat assessments but that it was important, in her opinion, to have a wide public discussion to inform, dispel illusions and correct false perceptions. Professor Kellman agreed by saying that a marginal decrease in the risk of bioterrorism could be obtained even in the absence of a comprehensive threat assessments so long as models/systems/regimes continued to be developed and carefully considered. Public discussion also needed to be extended to the international scene.

A final statement was made by a member of the audience, conveying a sense of frustration about whether the effort at legal examination was even worth it when the issues were so difficult to even come close to resolving; that whether attempts at analysis were not simply rhetorical. Ms. Spaulding and Professor Kellman concurred in replying that there is always a benefit to be gained from continually searching for answers, especially in view of the magnitude of harm that a bioterrorist attack could cause.

Prepared by Elina Noor

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