32 | The Federal Lawyer | October 2002By Victoria Sutton

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Why? The first revelation is the unique features ofbioterrorism make it particularly unmanageable in ourcurrent legal framework. Federal authorities and expertshave organized these as weapons of mass destruction,earning the collective acronym, WMD; yet radiological,nuclear, and chemical threats differ significantly from bio-logical threats. Radiological, nuclear, and chemical threatsare known when they occur, are spent immediately upontheir attack, and have a relatively contained geographicalregion of impact. In marked contrast, biological threatsare clandestine in their delivery, with the time of attackbeing unknown; the impact of a biological threat is notspent upon attack but increases exponentially in its effecton human life. The geographical region affected is limitedonly by the planet, facilitated by the wide use of air travelby individuals. The expertise to deal with these weaponsalso differs, and it is the public health community that ismost critical in addressing the threat of bioterrorism. Pre-vention, too, is markedly different: criminal investigationwith attendant tracking of chemicals and radiological ma-terials is required through the ports of entry and trans-portation systems. Biological materials must be trackedthrough medical data obtained by public health surveil-lance systems. In contrast, monitoring ports of entry andtransportation systems is meaningless where much smallerquantities of biological materials than chemical and radio-logical materials can be used for a deadly attack. It is criti-cal that our infrastructure evolve to account for theseunique features of bioterrorism.

So, too, the legal framework created according to theconstitutional concepts of federalism as it now exists isunrealistic in light of the threat to national security. Cur-rently, our national defense against bioterrorism is drivenby 54 different state and territorial public health systems,linked only by the web of volunteer efforts of national as-sociations of epidemiologists, public health officers, andemergency response officials, with no overarching federalauthority or coordination. This is a result of our historicalinterpretation of the 10th Amendment, which mandates

that “those powers not given to the U.S. Congress, norprohibited by it to the states, shall be reserved to thestates. …” Public health law has been a power of the statesince the time of the colonies, and only through Com-merce Clause power has the U.S. Congress taken any ofthe states’ powers, based upon effects on interstate com-merce, such as food safety and drug sales.

National efforts to develop exercises to address thepolicy and public health needs have focused primarily onthe medical aspects and have only scratched the surfaceof issues that must be resolved in law and federalismwhile we have the opportunity to do so in a nonemer-gency context. In August 2002, “Pale Horse 2002,” at FortSam Houston in San Antonio, Texas, was the first such na-tional exercise to recognize the vital need to comprehen-sively address the legal framework for these responses.

Legal issues and relevant case law, which must be ad-dressed by the legal community in order to provide for aneffective national defense, include such issues as separa-tion of powers, federalism, federal and state governmentroles, private sector effects, and criminal and civil implica-tions, as well as technological and scientific areas. To ad-dress these legal challenges, an overview of these areascan assist in developing a dialogue within the nation’s le-gal community.

The Changing Nature of FederalismBioterrorism does not fit well within our traditional no-

tions of the point in time when national security emer-gency power should shift from state power. The threat ofbioterrorism requires a federal presence in the publichealth system long before we have a national securityemergency, because biological threats are an emergencybefore they are known. The shift to national power wouldcome much too late to provide for our national securitywithout catastrophic consequences. Simply put, a legalframework that minimizes jurisdictional boundaries — be-cause biological agents ignore jurisdictional boundaries —is essential to national security.

October 2002 | The Federal Lawyer | 33

BIOTERRORISM IS A THREAT of catastrophic proportions, yet in the wake ofthe fall 2001 anthrax attacks, it became evident that our nation wassadly unprepared. Our innocence as a nation has been replaced bythe sobering reality that we are vulnerable in a way previously con-templated only in the cinematography of Hollywood, as in “Out-break” (1995), or in fictional reading, as in “The Cobra Event”(Richard Preston, 1999). So, too, the aftermath of 9/11 and the sub-sequent anthrax attacks raise new policy challenges and legal issuesat the heart of our system of laws.

An example of such a shift in federalism is evident inthe federal response to environmental disasters. Just aspublic health law is now a state power, so too, was prop-erty law in relation to environmental pollution prior to the1970s. After Congress recognized the failure of having a50-state system of environmental protection — when pol-lution recognizes no jurisdictional boundaries — it tookaction to create a series of federal environmental statutesthat pre-empted states’ traditional sovereign power inproperty law.

This manner of evolving federalism is not, therefore,foreign to our legal system or to the U.S. Constitution.James Madison wrote in The Federalist Paper No. 46, “If,therefore … the people should in future become morepartial to the federal than to the State government, thepeople ought not to be precluded from giving most oftheir confidence where they may discover it to be mostdue. …”

Our system of federalism divides specific powers be-tween state and federal governments. Congressional pow-ers are those enumerated in the U.S. Constitution; andstate powers are all those other powers that include po-lice powers and criminal and public health laws. The 10thAmendment specifically provides that “powers not dele-gated to the United States by the Constitution, nor prohib-ited by it to the States, are reserved to the States respec-tively. …”1 Even in Colonial times, states had quarantinepowers to police the public health of the colonists. Onlyin times of emergency and war do powers shift to the fed-eral government; while in peacetime, power remains withthe states. The problem with this relationship is that in abiological attack — unlike a chemical, radiological, or nu-clear one — days or weeks will pass before we know wehave been attacked. Peacetime is the critical time for thefederal government to have a national surveillance systemand the authority to address a biological attack in its earli-est stages before it becomes a national emergency. Other-wise, days or weeks will have passed before states call onthe Centers for Disease Control and Prevention (CDC) un-der the current legal framework.

The bill proposing a Department of Homeland Securi-ty, which passed the House 295 to 132 on July 26 and iscurrently being considered by the U.S. Senate, would be-gin a shift in the current federalism balance in the area ofpublic health to respond to our need for nationalsecurity.2

Federal Government OrganizationThe federal government’s current coordination mecha-

nism does not address the unique demands of a biologi-cal attack. Under the Clinton administration, PresidentialDecision Directives 39, 62, and 63 (PDD 39, 62, and 63)determined that, in a terrorist attack, the FBI would be thelead agency, the Federal Emergency Management Agency(FEMA) would be the lead for consequence management,and the National Security Council would be the intera-gency coordinator of terrorism policy. This system worksfor nuclear, chemical, or bombing incidents, but is inef-fective with a biological attack. The glaring omission of

the Public Health Service or the CDC as a lead agency is aserious weakness in the plan, and the lack of expertise,staff, and training in the FBI as the lead agency in a bio-logical attack has been evident since 9/11.

In PDD 39, 62, and 63, the FBI is designated as thelead agency for “domestic crisis response” and FEMA asthe lead agency for “consequence management” for allweapons of mass destruction. However, the expertise andinstitutional culture required for epidemiological investi-gations and biological warfare are more strongly centeredin the mission of the Public Health Service. The CDC andthe U.S. Army Medical Research Institute of Infectious Dis-eases (USAMRIID) are more adequately staffed to investi-gate biological contamination and to provide rapid epi-demiological identification of the process and agent beingused in any particular bioterrorism event. Both CDC andUSAMRIID are considered the world’s leading centers forforensic analysis and have been recommended by leadingterrorism experts for leadership roles in bioterrorism, yetour existing current federal organization merely gives lipservice to these agencies, and the proposed departmentdoes not reflect their unique resources, which are so es-sential to leadership roles in biodefense.

Apprehension of bioterrorists is definitely within themission of the FBI, which reads: “The mission of the FBIis to uphold the law through the investigation of viola-tions of federal criminal law; to protect the United Statesfrom foreign intelligence and terrorist activities; to provideleadership and law enforcement assistance to federal,state, local, and international agencies; and to performthese responsibilities in a manner that is responsive to theConstitution of the United States.” The FBI should clearlybe involved but equally clearly should not be directingthe effort to either prepare for or respond to bioterrorism.

Utilizing the FBI in a role so counter to a mission thatit does not have the tools or the culture to address is anexperiment that we cannot now afford. So, too, FEMA, asthe lead agency for responding to a bioterrorism event,has skill primarily in planning for and responding to natu-ral disasters, which typically require immediate infrastruc-ture compensation to communities for such natural disas-ters as earthquakes, flooding, and volcanic eruptions anddo not address the kinds of responses necessary for theleadership role in bioterrorism response and prepared-ness.

The President’s June 2002 proposal for a Departmentof Homeland Security contained three significant signalsfor a shift from state to federal power in the war againstbioterrorism for national security purposes. First, the pro-posal plans that “the Department would set national poli-cy and establish guidelines for state and local govern-ments,” which takes that role from the states’ publichealth agencies. Second, the proposal makes the Depart-ment of Homeland Security “the lead agency preparingfor and responding to … biological … terrorism,” whichassumes part of the states’ public health agencies’ respon-sibility. Third, the proposal directs that “the new Depart-ment would ensure that local law enforcement entities —and the public — receive clear and concise information

34 | The Federal Lawyer | October 2002

from their national government,” which again assumespart of the states’ public health agencies’ responsibility fororiginating their own public health information. Thesefederalism shifts for purposes of national security are con-sistent with constitutional constraints, and legislationshould reflect this distribution of powers.

State PowersState powers in biodefense are no less important. They

involve existing state public health laws, states’ policepowers to quarantine and require vaccinations, the pro-posal of new bioterrorism legislation, utilization of thestate national guard, and state common law applicable tobioterrorism. Until a federal system of biodefense is creat-ed, our national defense powers lie with the states —with assistance from the CDC upon request by the states,mandated by the CDC’s enabling statutory language.

Two important police powers of the state in the area ofpublic health law are in requiring quarantines and vacci-nations. The state power has been recognized since Jus-tice Marshall established the states’ quarantine authority inGibbons v. Ogden3 — the landmark Commerce Clausecase. In Jacobson v. Massachusetts,4 the U.S. SupremeCourt recognized the power of states to penalize thosewho refused mandatory smallpox vaccinations. Prince v.Massachusetts5 precluded a religious objection to vaccina-tion when the protection of the public health would be indanger. Constitutional due process, right of privacy, andthe public health interests of the state are issues that bal-ance this power. The current CDC Smallpox Plan reliesupon state public health authorities to take the lead in anemergency.

In the area of state legislation, the National Associationof Governors, with the CDC and others, commissionedthe development of the Model Public Health Act forstates, and, after the anthrax attacks, accelerated it tocompletion in the winter of 2001. Approximately 33 stateshave introduced some form of the Model Act, and 11states have passed some form of new public health lawlegislation.

The use of the National Guard also has raised new is-sues about state powers. A state’s National Guard re-sponds to requests of the governor or requests of thePresident. The U.S. Constitution, Art. I, § 8, cl. 15 and 16,provides for a militia to execute the laws of the union.This provides for the states’ authority to appoint officersand to control their militia when not in the service of thenational government. National Guard members serve asmembers of both their state National Guard as well as theNational Guard of the United States.6 The role of the Na-tional Guard and the states’ public health authorities mustbe a focus in state and federal plans and legislation.

State common law was utilized unsuccessfully in therecent anthrax attacks by the postal workers seeking toobtain an injunction against the U.S. Postal Service, in aneffort to close the Morgan postal facility in New York. Theplaintiffs alleged that the U.S. Postal Service had “actionsand omissions … with respect to the handling of anthrax[which] have created a public nuisance because of the po-

tential exposure of the general public to a deadly bacte-ria.” Because of the Federal Tort Claims Act limitation onmoney damages and because Congress did not waivesovereign immunity for injunctive relief, the injunctionwas denied.7

Other conceivable tort issues for the state in the eventof bioterrorism could include negligence in failing to pre-pare for an emergency, failure to respond with appropri-ate medical treatment, and failure to warn. These must beexamined on a state-by-state basis.

The U.S. Constitution, New Federal Statutes and ToolsThe Biological Weapons and Anti-Terrorism Act of 1989

was passed as part of our responsibility under the interna-tional Biological Weapons Convention of 1972 to enactdomestic laws to combat bioterrorism. The September1984 Bhagwan Shree Rajneesh attack on salad bars inOregon — using salmonella contamination in an attemptto skew an election — was also part of the impetus be-hind the statute’s passage. This statute applies to anyonewho “knowingly develops, produces, stockpiles, transfers,acquires, retains or possesses any biological agent, toxinor delivery system for use as a weapon.”8 This sectionalso applies extraterritorially to a U.S. national.9 It was thearrest of Larry Wayne Harris in 1995 that prompted theU.S. Congress to pass the Anti-Terrorism and Death Penal-ty Act of 1996. Harris’ peaceful plans to use plague bacte-ria to develop a vaccine intended to protect the publicfrom Iraqi attacks made it difficult to find culpability un-der the Biological Weapons and Anti-Terrorism Act of1989. Ultimately, he was given probation for a mail fraudconviction that would not have been possible had he notmisrepresented himself in a letter to the laboratory wherehe otherwise legally obtained the plague bacteria. In re-sponse to this, a new statute criminalized the unautho-rized possession of biological agents used for weapons.Congress passed the Anti-Terrorism and Effective DeathPenalty Act of 1996, which expands the federal govern-ment’s power to prosecute individuals and groups whoattempt or even threaten to develop or use a biologicalweapon and broadens the definition of bioweapons to in-clude engineered organisms. Again, escaping serious cul-pability, Larry Wayne Harris, a member of a domestic hategroup known as “Identity,” obtained the bacteria throughan authorized laboratory and claimed that he was work-ing on a vaccine to protect citizens from a biological at-tack. This 1996 statute was used in United States v. Wise10

against domestic bioterrorists attempting to use botulinumtoxin, and the 1989 act was employed in United States v.Baker,11 a case involving the use of ricin, a deadly deriva-tive of the castor bean, as a bioweapon. Two defendantsafter United States v. Lopez attempted to invalidate the1989 act, charging that it exceeded Congress’ power un-der the Commerce Clause. In United States v. Slaughter12

the district court held that “there is insufficient evidencethat the threatened use of anthrax would have affected in-terstate commerce to support a conviction …”; whereas inUnited States v. Wise, the circuit court held that the act didnot violate the Commerce Clause, opining, “[t]he threat it-

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self crossed state boundaries; therefore, it cannot be ar-gued that an effect on interstate commerce is lacking inthis case.”13 The recent trend in Commerce Clause casesreviewed by the U.S. Supreme Court would suggest thatpublic health law would be infringed by the reach of theCommerce Clause under this statute, particularly since itdoes not involve economics as in Solid Waste Agency ofCook County and United States v. Morrison, which limitedCommerce Clause power to those areas that truly haveeconomic effects.

The most recent statute, the Public Health Security andBioterrorism Preparedness and Response Act of 2002,14

engrossed June 12, moves toward closing loopholes inthe previous statutes. The new statute eliminates the needto prove intent to use the biological agent as a weapon,and it creates a “reckless disregard” of the public healthand safety standard for the handling of biological agents.

The Fourth Amendment’s search and seizure provisionwas at issue in United States v. Larry Wayne Harris,15

where vials of plague bacteria were found in the glovecompartment of the defendant’s car, which was parked inhis driveway. The court found the evidence admissiblebecause the warrant for the address permits a search of acar in the driveway, such as in this case; and also wherethere is consent — which there was in this case; and theofficers had probable cause to believe the vials were inthe glove compartment of the car. Searches will be moredifficult because of the inherently small quantities of bio-logical agents, such as vials, as in this case. Plain viewwill be unlikely to reveal the usually small sample quanti-ties of biological weapons, and a very specific idea of thelocation of the agents will be necessary to successfully re-cover evidence of biological weapons.

An exception from departure from the Federal Sentenc-ing Guidelines was not upheld by the circuit court inUnited States v. Leahy,16 where Leahy was convicted un-der the 1989 act involving ricin. The circuit court foundthat departure upwards where “the court finds that thereexists an aggravating or mitigating circumstance of a kind,or to a degree, not adequately taken into consideration bythe Sentencing Commission in formulating the guidelinesthat should result in a sentence different from that de-scribed,”17 is acceptable but not in this case. The courtheld that the district court erred in its selection of theanalogous sentencing guideline “because there was noevidence showing that Leahy engaged in an actual act orattempted act of terrorism. …”18 Given the new criminalstatute, the Bioterrorism Prevention Act of 2001, and theseriousness of mere possession of bioweapons, the Sen-tencing Commission should re-examine the sentencingguidelines after this decision to fashion appropriate guide-lines or identify an analogous sentence.

Civil Issues Arising from BioterrorismIn the recent Smith v. Potter case,19 the postal workers

at New York’s Morgan facility, which had been contami-nated with anthrax spores, utilized a theory under thefederal environmental statute, Resources Conservation andRecovery Act (RCRA), requiring emergency cleanup of

hazardous materials where there is an “imminent and sub-stantial endangerment.” Unfortunately, the court did notreach that issue, which would have determined how thecourt might have interpreted “hazardous material” and theapplication of RCRA to biological attacks.

Tort claims for the use of a vaccine that has unintend-ed harmful effects resulted in landmark litigation with thepolio vaccine20 and the swine flu vaccine.21 As a result ofthe liability created for pharmaceutical companies thatproduced a vaccine that had a narrow profit-margin, thefederal government feared that the vaccine would be-come unavailable. The National Vaccine Injury Compensa-tion Program (NVICP) was developed, enabled by the Na-tional Childhood Vaccine Injury Act of 1986,22 which pro-vides no-fault compensation for injury or death from thevaccines for polio, diphtheria, pertussis, tetanus, measles,mumps, rubella, hepatitis B, heamophilius influenza typeB, varicella (chicken pox), rotavirus, and pneumoccocal7-valent conjugate.23 The development of new vaccinesas well as the anticipated use of smallpox vaccine for thebroad vaccination program for adults as well as children— as contemplated by the CDC — will make new legisla-tion necessary.

Further regulatory changes may be needed to addressthe process for testing and approving such vaccines thatare investigational new drugs (IND), such as the currentsmallpox vaccine. For example, the CDC smallpox planrequiring vaccination must include a process of informedconsent and each recipient of the vaccine because it is inthe IND status, which cannot be waived for civilians.24

Federal labor law was utilized in the recent anthraxcontamination of a postal facility in Florida in Miami AreaLocal v. United States Postal Service,25 where the laborunion sought negotiations to provide for worker safety.Wrongful death actions have been initiated with the deathof two postal workers exposed to anthrax while workingin the Brentwood postal facility in Washington, D.C. Onefamily has settled with the hospital, and the second familyhas proceeded through the pretrial litigation stage. InMorris v. Kaiser,26 the theory of recovery is based in neg-ligence on the part of the hospital and medical careproviders, while a third-party complaint for indemnifica-tion and contribution has been filed against the UnitedStates by the defendant for the government’s role in fail-ing to take action with the contaminated postal facilityand its workers.

In the private sector of risk management, a serious cri-sis has been created by insurance companies that havedropped their coverage for risks and losses associatedwith terrorism. Airline companies, hotels, and transporta-tion systems are most seriously affected by this loss incoverage. In June 2002, the Senate rejected a bill thatwould exclude punitive damages against businesses forlosses due to terrorist attacks without a finding of criminalnegligence. Insurance companies would be co-insured bythe federal government for 80 to 90 percent of theamounts claimed. As this article goes to press, the confer-ees are continuing to consider the terms, particularly theaward of punitive damages. Currently, the language pro-

36 | The Federal Lawyer | October 2002

hibits awarding punitive damages in excess of the defen-dant’s direct proportion of responsibility for the plaintiff’sphysical harm.27

Civil Rights Issues in Public Health Law Concerning BioterrorismCivil rights issues will be a concern within the context

of the threat of bioterrorism. Surveillance, characterizationof the threat, response, and quarantine issues at eachphase of an attack will raise fundamental rights questions.

In surveillance, Fourth Amendment search and seizureprotections will be a consideration in the collection ofsamples from individuals, the requirement to providesamples, and the need to enter homes. The right of priva-cy will be raised in the context of medical informationand the need to share this information with public healthauthorities or law enforcement authorities.

In the response phase of a bioterrorism attack, the useof the military will be governed by the Posse ComitatusAct in order to protect against the use of military forceagainst civilians. This statute was passed in response tothe experience of martial law in the South after Recon-struction and precludes the military from having enforce-ment interface with civilians. The statute is limited to pro-viding resources and personnel but stops short of strategyand military command as part of a civilian operation. Thefirst major infraction under this act was found during theWounded Knee incident in South Dakota, where the mili-tary was utilized without a mandatory order from thePresident.28

The Fifth and 14th Amendments’ protections againsttaking without just compensation provisions will be in-voked where the requirement to take residences, busi-nesses, or vehicles arises in the context of a biologicalevent. Some states are considering legislation to providefor the need to take property in the event of a biologicalattack.

Human remains are required to be returned to familiesunder the constitutional right of privacy, but this must bedone without a risk to public safety. Jurisdiction for hu-man remains is within state law and considers the right ofthe family to have the remains and the obligation of thefamily to take possession of the remains. Jurisdiction forhuman remains in a government building or a military in-stallation is federal, and military guidelines for human re-mains apply. For example, in the aftermath of the 9/11 at-tacks, the jurisdiction for human remains in the WorldTrade Center was within that of the state of New York;while the jurisdiction for human remains in the Pentagonwas that of the U.S. military.

For quarantine issues, Fifth and 14th Amendment dueprocess requirements must be met in detaining individu-als, and Fourth, Fifth, and Sixth Amendment protectionsmust be raised against noncriminal detentions. The les-sons learned from the recent anthrax attacks, which in-volved a number of local quarantines demonstrated inone case, conflict with interpretations of due process,which will result in political chaos. For example, it wasreported that in Jefferson County, Mo., private security of-ficers had to be hired to replace the county deputies

when the sheriff refused to have his deputies evacuateand enforce a quarantine of the building, properly or-dered by the county commissioner when an anthrax scareoccurred.29 Although the commissioner had authority toissue this order, the refusal to enforce the quarantinebased upon the judgment of the county law enforcementofficials raises serious concerns and suggests a need for anational approach to defining due process in the contextof quarantine to lessen the chaos in the event of any needto quarantine in a biological attack.

International Law and BioterrorismThe revelations in 1993 that not only did the Soviet

Union have a biological weapons production network,Biopreparat, with huge quantities of smallpox, but thatIraq, too, had a not-unrelated biological weapons produc-tion facility, which had been discovered at the end ofDesert Storm, alerted Congress to the increasing risk of abiological attack.

The first international instrument to address the threatof bioterrorism — at least in a broad sense — was theGeneva Convention of 1925, which simply required civilbehavior between countries. Between 1925 and 1969,bioweapons programs proliferated. In 1969, PresidentNixon ended the nation’s biological weapons programthat had begun in the mid-1940s and converted all opera-tions to a defensive program, when he said to the world,“I have decided that the United States of America will re-nounce the use of any form of deadly biological weaponsthat either kill or incapacitate.” The Biological WeaponsConvention of 1972 was the first instrument to address theworldwide elimination of biological weapons, which fol-lowed President Nixon’s announcement. Currently, 172countries are signatories to the convention, including theformer Soviet Union and Iraq. The lack of a monitoringmechanism in the convention has made it convenient forthe proliferation of facilities that produce biologicalweapons in the former Soviet Union and Iraq.

The Anti-Terrorism and Death Penalty Act permits theUnited States to prevent the entry of members of groupsknown to be engaged in terrorism, such as the Aum Shin-rikyo group of Japan, responsible for the sarin gas attacksin the Tokyo subway in 1995.

Other countries are struggling with the need to devel-op domestic protection against biological threats, whilebalancing that need against civil liberties. Comparing oth-er countries’ laws, the United States still measures up fa-vorably in protection of civil liberties, even after the pas-sage of the USA PATRIOT Act of 2001.

In Japan, the Anti-Subversive Activities Law of 1952 isintended to provide a legal process by which groupsidentified as threats can be disbanded. The standard fordisbandment is a clear danger of engaging as an organiza-tion in violent subversive activities for political purposesrepeatedly and continuously in the future. Even after theAum Shinrikyo sarin attack in the Tokyo subway, theJapanese commission failed to find that the acts rose tothe level of disbandment. In November 1999, the Japan-ese Parliament passed new legislation to provide for the

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tracking of organizations that in the last five years hadcommitted indiscriminate mass murders. Authorities are al-lowed to keep such groups under surveillance for up tothree years and the police can conduct searches withoutprobable cause at any time. These groups also have a re-quirement to report their activities on a quarterly basis. Vio-lations can result in temporary or permanent disbandment.

On July 22, 2001, the French Parliament passed new leg-islation that would allow the French government to dis-band organizations whose leaders commit crimes. This lawallows groups that employ techniques to alter thinking tobe identified as cults. A commission appointed by theFrench government has identified 172 such cults, which arecandidates for disbandment should their leaders commit acrime. This law was widely criticized by France’s citizens asa serious threat to civil liberties, yet it remains law.

A recent Gallup Organization poll in the United Statesreported in June 2002 that 30 percent of Americans favoreasier access to mail, e-mail, and telephone conversationsfor legal authorities,30 which suggests a move toward moretolerance of government intrusions into traditional areas ofprivacy, if it provides homeland security.

Science Issues, Law, and BioterrorismLast month, the National Academy of Sciences released

a study on the use of science and technology in the waragainst terrorism.31 New technologies are on the horizon tocreate biological weapons that offer combined characteris-tics of several biological agents that have no known vac-cine or cure, making vaccines ineffective in producing thenecessary antibodies needed to create immunity. New reg-ulations to monitor the laboratories engaged in these stud-ies — or to limit the publication of new discoveries inbiotechnology that could aid terrorists in the developmentof such weapons — must ultimately be considered as ameasure for national security.

Recent measures to monitor foreign students enrolled inresearch facilities in the U.S. are of limited utility in identi-fying bioweapons threats but instead create a broad “watchlist,” which could merely divert federal personnel frommore critical homeland security tasks. Focusing our re-sources in the most efficacious manner on science andtechnology is critical for our nation in our war on terrorism.

ConclusionThe legal community now has a window in which to

examine impediments to optimal national security, basedupon a successful rule of law system, the Constitution, anda system of federalism. Challenges to our civil rights re-quire vigilance and protection as we seek to preserve ourfreedoms in the context of homeland security, but a broad-er dialogue should begin among federal lawyers to addressthe challenges to shaping our legal framework in all ofthese critical areas. A new Department of Homeland Secu-rity will be successful only if these legal challenges are ad-dressed. TFL

Victoria Sutton is director of the Center for Biodefense Lawand Public Policy at Texas Tech University and a professor

of law at Texas Tech University School ofLaw. She is the former assistant director ofthe White House Science Office (1990–93)and the author of three books: Law andScience: Cases and Materials (2001), Lawand Biotechnology: Cases and Materials(2003), and Law and Bioterrorism (2002)(Carolina Academic Press). © 2002 byVictoria Sutton. All rights reserved.

Endnotes1U.S. Const., Amend. X.2107th Cong., 2d Sess., H.R. 5005 (introduced June 24).322 U.S. 1(1824).4197 U.S. 11 (1905).5321 U.S. 156 (1944).6National Defense Act Amendments of 1933, 48 Stat. 153

(1933).7Smith v. Potter, 2001 U.S. Dist. LEXIS 18625 (Nov. 16,

2001).818 USC § 175(a)(2001).9Id.10221 F.3d 140 (5th Cir. 2000).1198 F.3d 330 (8th Cir. 1996).12116 F. Supp. 2d 688 (Aug. 29, 2000).13221 F.3d 140 (5th Cir. 2000).14P.L. 107–188 (2002).15961 F. Supp. 1127 (S.D. Ohio, Eastern Div., 1997).16169 F.3d 433 (7th Cir. 1999).17At 15.18169 F.3d 433 at last paragraph (7th Cir. 1999).192001 U.S. Dist. LEXIS 18625 (Nov. 16, 2001).20Reyes v. Wyeth Laboratories Inc., 498 F.2d 1264 (5th

Cir. 1974).21Sparks v. Wyeth Laboratories Inc., 431 F. Supp. 411

(W.D. Okla. 1977).2242 USC 300(aa) (2001).23www.cdc.gov/od/nvpo/fs_tableIV_doc1.htm (retrieved

July 29, 2002).24CDC Interim Smallpox Response Plan and Guidelines,

Draft 2, Annex 2, A2-15 (Nov. 21, 2001).25173 F. Supp. 2d 1322 (Nov. 16, 2001).26Civ. No. PJM 02-1468 (U.S. So. Dist., MD) (Apr. 23,

2002).27107th Cong., 1st Sess., H.R. 3210 and S.B. 2600 (2002).28United States v. Jaramillo, 380 F. Supp. 1375 (1974);

and United States v. Red Feather, 392 F. Supp. 916 (D.C.S.D., 1975).

29Tim Rowden and Andrew Schnedider, Jefferson Coun-ty Officials are at Odds Over Management of AnthraxScare, ST. LOUIS POST-DISPATCH, B1 (Oct. 31, 2001).

30www.counterterrorism.org/gallupoustudy.html (re-trieved Aug. 2, 2002).

31National Research Council, Making the Nation SaferThe Role of Science and Technology in Countering Terror-ism (2002) (www.nas.org).

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