Biological Terrorism: Legal Measures for Preventing Catastrophe

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. …