(BIO)TERRORISM A. INTRODUCTION To many Americans time is divided by September 11, 2001; there is a world before September 11 and a different world after September 11. September 11 may not have “changed everything,” but it has certainly changed a lot—including major changes in public health funding, laws, and structure. It has caused us to be concerned, even obsessed, with a disease the eradication of which has been seen as public health’s greatest triumph: smallpox. It has refocused public health funding, led to new public health laws, and created an entirely new field, emergency and “public health preparedness.” How should public health and public health lawyers react to the threat of terrorist attacks, including the possible use of a biological agent as a weapon, so-called “bioterrorism?”
This concluding chapter on a post-9/11 terrorism challenge to public health is designed as a case study to encourage students to apply the law highlighted in the preceding chapters to determine the most effective, efficient and civil-liberties friendly responses. Because compulsory measures related to contagious disease epidemics, like quarantine, are often discussed in the context of preparedness planning, the materials in chapter 3 will often be of particular relevance. Among the questions that are posed throughout are: Can public health funding really be “dual use” so that we need not sacrifice traditional public health activities for new ones, or will have to develop new priorities? Does our current “all-hazards” approach to disaster planning make sense given our experience with it in failing to prepare for and respond effectively to Hurricane Katrina? What does “preparedness” mean, and how do we apply public health principles to preventing a bioterrorist attack? Should we expand public health surveillance over medical care in emergency departments and physician offices? Should we develop new rules restricting access to bacteria and viruses that can be used as weapons? Should we shift legal power from states and localities to the federal government, or even to multinational or global organizations? How can the trust of the public in public health be maintained and fostered? Is public health the ultimate global public good? Should public health encourage international cooperation and respect international law? And, ultimately, have we over-reacted to 9/11, and if so, in what areas can or should we return to the pre-9/11 public health?
The materials begin with summaries and recommendations from the 9/11 Commission in Section B; Section C is devoted to the anthrax attacks that occurred just after 9/11; Section D details and explores the smallpox vaccination program initiated in the run-up to the Iraq war; Section E is devoted to the new and rapidly growing area of bioterror preparedness and research and its impact on public health and risk perception; Section F is on federal preparedness, and Section G is on global health., including the emerging field of (public) “health and human rights.”
CRAIG R. WHITNEY, INTRODUCTION TO THE 9/11 INVESTIGATIONS xx-xxi, xxxiii (STEVEN STRASSER ED., 2004) Until the cold war unraveled after the collapse of the Berlin Wall in 1989, the administrations of presidents Ronald Reagan and George H.W. Bush paid comparatively little attention to terrorism, despite the Hezbollah attack that killed 241 marines in Lebanon in October of 1983 and the Libyan sabotage of Pan American Flight 103 that killed 270 people over Lockerbie, Scotland in 1988. Before the first terrorist attack on the World Trade Center in New York City in 1993—and the later discovery of a related plot to blow up the city’s river tunnels and the United Nations building—terrorism had been considered only a marginal threat to the United States itself. It took time for the implications to sink in.
Not until 1995 did President Bill Clinton establish a working level “Counterterrorism Security Group” inside the White House, chaired by Richard A. Clarke. It was not until 1996, Clarke wrote in a controversial book published on the eve of his public testimony before the 9/11 commission, that the government figured out that it was up against an Islamic terrorist network of global dimensions led by a renegade from a wealthy Saudi Arabian family, Osama bin Laden. And only after terrorist suicide truck bombers destroyed the American embassies in Tanzania and Kenya in August 1998, killing 257 (including 12 Americans) and wounding 5,000 people in Nairobi, did President Clinton order the first direct response against al Qaeda, a cruise missile attack on its training grounds in Afghanistan.
Spending on U.S. defensive actions against terrorism increased in 1999 and 2000, but President Clinton was distracted by the Monica Lewinsky affair. Even after suicide bombers used a boat full of explosives to blow up the U.S.S. Cole in Aden on October 12, 2000, killing seventeen sailors and injuring thirty-nine, the Clinton administration did not retaliate against al Qaeda, unsure that it had carried out the attack. Clarke and other officials were left to try to persuade the incoming administration of President George W. Bush that the threat of terrorist strikes on American soil posed an urgent danger. President Bush’s first national security briefings, Clarke said, were not about terrorism but about two issues that seemed more important to the president then—Iraq, where his father’s administration had left Saddam Hussein in power after Operation Desert Storm, and missile defense.
Then came September 11. . .September 11 was a warning, but also an opportunity to set in place defenses against new and even more terrible terrorist attacks. With the Arab world in turmoil over the war in Iraq and the Bush administration’s unconditional backing of Israel in its showdown with the Palestinian Authority, al Qaeda metastasized rapidly despite losing its sanctuary in Afghanistan. After attacks in Indonesia, Thailand, the Philippines, and then Madrid in the spring of 2004, the threat of terrorism to the United States and its Middle Eastern and European allies seemed even greater than it had been in 2001. The worst scenario would be an attack using nuclear, biological, or chemical weapons, and al Qaeda and its spawn were known to have tried to acquire them.
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NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE U.S., 9/11 COMMISSION REPORT 361-398 (2004).
Three years after 9/11, Americans are still thinking and talking about how to protect our nation in this new era. The national debate continues. Countering terrorism has become, beyond any doubt, the top national security priority for the United States. This shift has occurred with the full support of the Congress, both major political parties, the media, and the American people.
The nation has committed enormous resources to national security and to countering terrorism. Between fiscal year 2001, the last budget adopted before 9/11, and the present fiscal year 2004, total federal spending on defense (including expenditures on both Iraq and Afghanistan), homeland security, and international affairs rose more than 50 percent, from $354 billion to about $547 billion. The United States has not experienced such a rapid surge in national security spending since the Korean War.
This pattern has occurred before in American history. The United States faces a sudden crisis and summons a tremendous exertion of national energy. Then, as that surge transforms the landscape, comes a time for reflection and reevaluation. Some programs and even agencies are discarded; others are invented or redesigned. Private firms and engaged citizens redefine their relationships with government, working through the processes of the American republic. Now is the time for that reflection and reevaluation. The United States should consider what to do—the shape and objectives of a strategy. Americans should also consider how to do it—organizing their government in a different way.
Defining the Threat In the post-9/11 world, threats are defined more by the fault lines within societies than by the territorial boundaries between them. From terrorism to global disease or environmental degradation, the challenges have become transnational rather than international. That is the defining quality of world politics in the twenty-first century.
National security used to be considered by studying foreign frontiers, weighing opposing groups of states, and measuring industrial might. To be dangerous, an enemy had to muster large armies. Threats emerged slowly, often visibly, as weapons were forged, armies conscripted, and units trained and moved into place. Because large states were more powerful, they also had more to lose. They could be deterred.
Now threats can emerge quickly. An organization like al Qaeda, headquartered in a country on the other side of the earth, in a region so poor that electricity or telephones were scarce, could nonetheless scheme to wield weapons of unprecedented destructive power in the largest cities of the United States. In this sense, 9/11 has taught us that terrorism against American interests “over there” should be regarded just as we regard terrorism against America “over here.” In this same sense, the American homeland is the planet. But the enemy is not just “terrorism,” some generic evil. This vagueness blurs the strategy. The catastrophic threat at this moment in history is more specific. It is the threat posed by Islamist terrorism—especially the al Qaeda network, its affiliates, and its ideology.
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Our enemy is twofold: al Qaeda, a stateless network of terrorists that struck us on 9/11; and a radical ideological movement in the Islamic world, inspired in part by al Qaeda, which has spawned terrorist groups and violence across the globe. The first enemy is weakened, but continues to pose a grave threat. The second enemy is gathering, and will menace Americans and American interests long after Usama Bin Ladin and his cohorts are killed or captured. Thus our strategy must match our means to two ends: dismantling the al Qaeda network and prevailing in the longer term over the ideology that gives rise to Islamist terrorism.
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Islam is not the enemy. It is not synonymous with terror. Nor does Islam teach terror. American and its friends oppose a perversion of Islam, not the great world faith itself. …
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The present transnational danger is Islamist terrorism. What is needed is a broad political-military strategy that rests on a firm tripod of policies to
Attack terrorists and their organizations;
Prevent the continued growth of Islamist terrorism; and
Protect against and prepare for terrorist attacks.
More than a War on Terrorism Terrorism is a tactic used by individuals and organizations to kill and destroy Our efforts should be directed at those individuals and organizations. Calling this struggle a war accurately describes the use of American and allied armed forces to find and destroy terrorist groups and their allies in the field, notably in Afghanistan. The language of war also evokes the mobilization for a national effort. Yet the strategy should be balanced.
The first phase of our post-9/11 efforts rightly included military action to topple the Taliban and pursue al Qaeda. This work continues. But long-term success demands the use of all elements of national power: diplomacy, intelligence, covert action, law enforcement, economic policy, foreign aid, public diplomacy, and homeland defense. If we favor one tool while neglecting others, we leave ourselves vulnerable and weaken our national effort.
Certainly the strategy should include offensive operations to counter terrorism. Terrorists should no longer find safe haven where their organizations can grow and flourish. America’s strategy should be a coalition strategy, that includes Muslim nations as partners in its development and implementation. Our effort should be accompanied by a preventive strategy that is as much, or more, political as it is military. The strategy must focus clearly on the Arab and Muslim world, in all its variety.
Our strategy should also include defenses. America can be attacked in many ways and has many vulnerabilities. No defenses are perfect. But risks must be calculated; hard choices must be made about allocating resources. Responsibilities for America’s defense should be clearly defined. Planning does make a difference, identifying where a little money might have a large effect. Defenses also complicate the plans of attackers, increasing their risks of discovery and failure. Finally, the nation must prepare to deal with attacks that are not stopped.
Measuring Success What should Americans expect from their government in the struggle against Islamist terrorism? The goals seem unlimited: Defeat terrorism anywhere in the world. But Americans have also been told to expect the worst: An attack is probably coming; it may be terrible.
With such benchmarks, the justifications for action and spending seem limitless. Goals are good. Yet effective public policies also need concrete objectives. Agencies need to be able to measure success.
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We do not believe it is possible to defeat all terrorist attacks against Americans, every time and everywhere. A president should tell the American people:
No president can promise that a catastrophic attack like that of 9/11 will not happen again. History has shown that even the most vigilant and expert agencies cannot always prevent determined, suicidal attackers from reaching a target.
But the American people are entitled to expect their government to do its very best. They should expect that officials will have realistic objectives, clear guidance, and effective organization. They are entitled to see some standards for performance so they can judge, with the help of their elected representatives, whether the objectives are being met.
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Recommendation: The U.S. government must define what the message is, what it stands for. We should offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors. America and Muslim friends can agree on respect for human dignity and opportunity. To Muslim parents, terrorists like Bin Ladin have nothing to offer their children but visions of violence and death. America and its friends have a crucial advantage—we can offer these parents a vision that might give their children a better future. If we heed the views of thoughtful leaders in the Arab and Muslim world, a moderate consensus can be found. That vision of the future should stress life over death: individual educational and economic opportunity. This vision includes widespread political participation and contempt for indiscriminate violence. It includes respect for the rule of law, openness in discussing differences, and tolerance for opposing points of view.
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Recommendation: The United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists. New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict. That article was specifically designed for those cases in which the usual laws of war did not apply. Its minimum standards are generally accepted throughout the world as customary international law. * * *
Recommendation: Our report shows that al Qaeda has tried to acquire or make weapons of mass destruction for at least ten years. There is no doubt the United States would be a prime target. Preventing the proliferation of these weapons warrants a maximum effort—by strengthening counterproliferation efforts, expanding the Proliferation Security Initiative, and supporting the Cooperative Threat Reduction program. * * *
Recommendation: At this time of increased and consolidated government authority, there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties. We must find ways of reconciling security with liberty, since the success of one helps protect the other. The choice between security and liberty is a false choice, as nothing is more likely to endanger America’s liberties than the success of a terrorist attack at home. Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend.
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Recommendation: Homeland security assistance should be based strictly on an assessment of risks and vulnerabilities. Now, in 2004, Washington, D.C., and New York City are certainly at the top of any such list. We understand the contention that every state and city needs to have some minimum infrastructure for emergency response. But federal homeland security assistance should not remain a program for general revenue sharing. It should supplement state and local resources based on the risks or vulnerabilities that merit additional support. Congress should not use this money as a pork barrel.
The 9/11 Commission (officially known as “the National Commission on Terrorist Attacks Upon the U.S.”) made 41 specific recommendations. Their final report was issued in July, 2004 and is available in its entirety on a frozen website that is maintained by the National Archives at www.9-11commission-gov/report/index.htm (last visited Aug. 2006). In December 2005 the Commission issued a report card on its recommendations, giving the government failing grades on many of its most important recommendations, including a “D” on developing critical infrastructure; and “F” on airline passenger pre-screening; a “D” on checked bag and cargo screening, a “D” on international collaboration on borders and document security, a “privacy and civil liberties oversight board, and on developing guidelines for sharing of personal information, and an “F” on “coalition detention standards” Dan Eggen, U.S. Issued Failing Grades by 9/11 Panel,Washington Post, Dec. 6, 2005, at A1.
Perhaps most strikingly, Congress continues to fund preparedness based on congressional districts rather than giving more funds to areas that are the most vulnerable. Editorial, Hokum on Homeland Security, N.Y.Times, Aug. 20, 2006, at WK9. For the inside story of the Commission by its co-chairs, see Thomas H. Kean & Lee H. Hamilton, Without Precedent: The Inside Story of the 9/11 Commission (2006). Not everyone was enthusiastic about the Commission’s recommendations. Richard Clarke, for example, thought that the quest for bipartisan unanimity led to the commission failing to “admit the obvious: we are less capable of defeating the jihadists because of the Iraq war. Unanimity has its value, but so do debate and dissent in a democracy facing a crisis. To fully realize the potential of the commission’s report, we must see it not as the end of the discussion but as a partial blueprint for victory.” Richard A. Clarke, Honorable Commission, Toothless Report, N.Y.Times, July 25, 2004, A11. See also, Richard A. Clarke, Against All Enemies: Inside America’s War on Terror (2004).
One of the Commission’s most striking findings was that the president had received a briefing on Bin Ladin’s plans on August 6, 200l, raising the question of whether warnings and preparations can do much good. The Presidential Daily Brief Memo is reprinted on pages 261-262 of the final report, and contains with the following observations about reports that Bin Ladin has wanted to hijack US aircraft since 1998:
“FBI information since  indicates patterns of suspicious activity in this country consistent with preparation for hijackings or other types of attacks, including recent surveillance of federal buildings in New York. The FBI is conducting approximately 70 full field investigations throughout the US that it considers Bin Ladin-related. CIA and the FBI are investigating a call to our embassy in the UAE in May saying that a group of Bin Ladin supporters was in the US planning attacks with explosives.”
The Commission concluding that there were no further discussions “before September 11 among the President and his top advisors of the possibility of a threat of an al Qaeda attack on the United States.” Nat’l Comm’n on Terrorist Attacks, supra, at 262.
Five years later the lesson seemed to have been learned, as the president said in a September 5, 2006 five-year anniversary speech on the global war on terror, “We know what the terrorists intend to do because they’ve told us—and we need to take their words seriously.” (available at www.whitehouse.gov) On the role of Al Qaeda see generally, Lawrence Wright, The Looming Tower: Al-Qaeda and the Road to 9/11 (2006).
New York Times columnist Tom Friedman has argued that dating America from September 11 is a major mistake, and that our country should remain the country of the 4th of July. In his view, globalization should continue to be seen as a positive force for the good of all, rather than as a threat to America. See, e.g., Thomas Friedman, The World is Flat: A Brief History of the Twenty-First Century (Updated and expanded ed. 2006).
It is striking that the 9/11 Commission highlighted the importance of the Geneva Conventions in our response to 9/11. Only a few months after the attacks, the president signed an executive order declaring that the Geneva Conventions did not apply to the Taliban or to prisoners held at Guantanamo Bay Cuba. This was the first time in U.S. history that a president has ever claimed an exception for the U.S. from this international treaty that covers the treatment of prisoners and civilians during wartime. In the summer of 2006 the U.S. Supreme Court got its first opportunity to decide if the president could unilaterally declare international law, specifically the Geneva Conventions, null. In what has been described as the most important case the Court has ever decided on the question of executive powers, the Court ruled that the Conventions must be followed as an integral part of international law. Justice Stevens wrote for the Court:
The [Court of Appeals] accepted the Executive’s assertions that Hamdan was captured in connection with the United States war with a Qaeda and that war is distinct from the war with the Taliban in Afghanistan. It further reasoned that the war with al Qaeda evades the reach of the Geneva Conventions. See 415 F. 3d, at 41-42. We, like Judge Williams, disagree with the latter conclusion.
The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U.S.T., at 3318. Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a “High Contracting Party”—i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan.
We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, certain provisions protecting “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those places hors de combat by…detention.” One such provision prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” (Williams, J., concurring). Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-à-vis one another even if one party to the conflict is a nonsignatory “Power,” and must so abide vis-à-vis the nonsignatory if “the latter accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning.
Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).
The complete text of Common Article 3 of the Geneva Conventions is:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those places hors de combatby sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
taking of hostages;
outrages upon personal dignity, in particular, humiliating and degrading treatment;
the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to conflict.
Taking human rights seriously in this context would have better sustained international support for the U.S. fight against terrorism. Moreover, following a convention-mandated screening process the United States could lawfully have questioned those prisoners (likely a majority) who did not qualify for POW status under the conventions. In short, little was gained, and much was lost, in the administration’s attempt to trash the Geneva Conventions by putting pragmatism over principle.
The administration’s decision to treat the Geneva Conventions as inapplicable helped create a sense that Guantanamo was a legal black hole to which neither U.S. nor international law applied. This attitude in turn helped produce the scandalous abuse and torture of Iraqi prisoners of war at Abu Ghraib prison. The photographs of their humiliating and degrading treatment made it appear that the United States was willing to fight terror with terror. Abu Ghraib negated any American claim of moral superiority in the world and destroyed all human rights rationales for the Iraq war. The “good guys” had become the “evildoers” on prime-time TV for the world to see.
Military physicians performed better and honored both medical ethics and the human rights provisions of Geneva I, which covers wounded prisoners. After the fiercest battle in Afghanistan, (part of Operation Anaconda), for example, the surgeon in command of the U.S. Army field hospital at Bagram Air Base, Lt. Col. Ronald Smith, told reporters who asked him that the Taliban and al Qaeda wounded were being treated side by side with the American wounded at the hospital, noting that “the ethics of combat surgery” require it.
It is also worth noting that the Geneva Conventions themselves affirmatively protect medical ethics. For example, Article 16 of Protocol I (1977) states in relevant part:
Under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.
Persons engaged in medical activities shall not be compelled to perform acts or to carry out work contrary to the rules of medical ethics or to other medical rules designed for the benefit of the wounded and sick or to the provisions of the Conventions or this Protocol, or to refrain from performing acts or from carrying out work required by those rules and provisions. (emphasis added)
In short, under international humanitarian law, human rights and medical ethics requirements are symbiotic. See, e.g., George J. Annas, American Bioethics: Crossing Human Rights and Health Law Boundaries 9-10 (2005); Edmund Pellegrino, Medical EthicsSuborned by Tyranny and War, 291 JAMA 1505 (2004).
Of course it is not just terrorism that has been globalized. As discussed in length in chapter 3, diseases know no national boundaries, and pandemics like HIV/AIDS, SARS, and the avian flu are all inherently global diseases that, like the global environment, no country can deal with effectively on its own. See, e.g., Laurie Garrett, The Coming Plague: Newly Emerging Disease in a World Out of Balance(1994).