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In Dismissing Ricin Charge Against White Supremacist, Judge Throws Enforcement of Bioterrorism Law into Chaos

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As pointed out first by Nick Watson in the Gainesville (Georgia) Times and then fleshed out further by Chris Joyner in the Atlanta Journal-Constitution, US District Judge Richard Story on September 21 dismissed a charge of possession of the deadly poison ricin against William Christopher Gibbs. Gibbs had been identified after his arrest by the Southern Poverty Law Center’s Hatewatch as a member of the bizarre Georgia Church of Creativity:

Gibbs claims membership in the “Georgia Church of Creativity,” a white supremacy sect that professes “race is our religion,” that the “white race is nature’s finest,” and that “racial loyalty is the greatest of all honors, and racial treason is the worst of all crimes.”

In his indictment, Gibbs was charged by a grand jury:

In his order directing that the charge be dismissed, Judge Story frames his decision as being due to a mere “clerical error” by the government in drawing up the underlying law and fleshing out the details in subsequent publication of rules. As Joyner described it:

A north Georgia white supremacist arrested last year for alleged possession of the deadly toxin ricin is no longer facing federal charges after a judge dismissed the case — on a technicality that exposes a regulatory failure.

In an order signed Sept. 21, U.S. District Court Judge Richard Story agreed with the man’s legal team that changes to federal law in 2004 and regulatory edits in 2005 inexplicably excluded ricin from the criminal charge of possession of illegal biological toxins known as “select agents.”

The huge problem here is that ricin is not the only agent that now, due to this error, falls outside the list of those proscribed from possession. Congress delegates the development and maintenance of the list of “select agents” to which this law applies to the Department of Health and Human Service for those agents that are human pathogens or toxins and to USDA for those agents that affect livestock or crops. The law also recognizes that some agents on these two lists will overlap, posing threats both to human and agricultural targets.

As Story details in his order, Congress revised the underlying law in late 2004. The list of select agents at that time showed clearly that ricin fell squarely within the purview of the law. But just a few months later, in early 2005, HHS revised its list and in this process, the entire non-overlapping list of human agents suddenly moved to a differently numbered section as it was published. That section number is not listed in the language in the 2004 revision, and so in ruling that Gibbs did not violate the law in possessing ricin, he is in effect making the entire HHS non-overlapping list exempt from the law. That means that under his interpretation, possessing the worst of the worst of the human pathogens or toxins, including even smallpox, cannot be charged under this law.

Here is the language of 18 US Code§ 175b(c), the section cited by the grand jury in the Gibbs indictment:

(c)UNREGISTERED FOR POSSESSION.—
(1)SELECT AGENTS.—
Whoever knowingly possesses a biological agent or toxin where such agent or toxin is a select agent for which such person has not obtained a registration required by regulations under section 351A(c) of the Public Health Service Act shall be fined under this title, or imprisoned for not more than 5 years, or both.
(2)CERTAIN OTHER BIOLOGICAL AGENTS AND TOXINS.—
Whoever knowingly possesses a biological agent or toxin where such agent or toxin is a biological agent or toxin listed pursuant to section 212(a)(1) of the Agricultural Bioterrorism Protection Act of 2002 for which such person has not obtained a registration required by regulations under section 212(c) of such Act shall be fined under this title, or imprisoned for not more than 5 years, or both.

This part of the law was from the 2004 revision we discussed earlier. In his decision, Story notes that the reading of the whole of 18 US Code§ 175b directs us to the first part of it to find where the list of select agents can be found. It reads:
(a)
(1)
No restricted person shall ship or transport in or affecting interstate or foreign commerce, or possess in or affecting interstate or foreign commerce, any biological agent or toxin, or receive any biological agent or toxin that has been shipped or transported in interstate or foreign commerce, if the biological agent or toxin is listed as a non-overlap or overlap select biological agent or toxin in sections 73.4 and 73.5 of title 42, Code of Federal Regulations, pursuant to section 351A of the Public Health Service Act, and is not excluded under sections 73.4 and 73.5 or exempted under section 73.6 of title 42, Code of Federal Regulations.
(2)
Whoever knowingly violates this section shall be fined as provided in this title, imprisoned not more than 10 years, or both, but the prohibition contained in this section shall not apply with respect to any duly authorized United States governmental activity.
The problem is when we move to the current version  of these lists, found here, the numbering for the sections is off when we look at the lists, we see that the entire HHS non-overlapping list is found in section 73.3 and not in 73.4 or 73.5. The agents found in 73.3 are the worst of the worst of agents feared as biological weapons. Even smallpox is on that part of the list, and so, by Story’s ruling, now excluded from prosecution.
In his order, Story relies on this garbled numbering to dismiss the charge:
As described above, § 175b defines “select agent,” as a “biological agent
or toxin” that is listed in 42 C.F.R. § 73.4 or § 73.5. This language is
unambiguous. And in defining “select agent,” the statute does not reference a
non-exhaustive list or provide examples; rather, it says what the term “means.”
42 U.S.C. § 175b(d)(l) (emphasis added). ‘”[M]eans’ denotes an exhaustive
defmition[.]” StanselL 704 F.3d at 915 filth Cir. 2013) (citing United States v.
Probel. 214 F.3d 1285, 1288-89 (11th Cir.2000)). Thus, “[w]hen a statutory
definition declares what a term ‘means’ rather than ‘includes/ any meaning not
stated is excluded.” Id, (citing Colautti v. Franklin, 439 U.S. 379, 392-93 &
n. 10 (1979)). Here, neither 42 C.F.R. § 73.4 nor § 73.5 include ricin. The
statute does not reference-and thereby excludes-any other sections of the
C.F.R. So, applying the statutory definition, as the Court is bound to do, the
unavoidable conclusion is that “select agent” under 18 U.S.C. § 175b does not
include ricin.2
Story even knows how the garbled numbering came about:
In 2004, as part of the Intelligence Reform and Terrorism Prevention
Act, Congress changed the reference from “Appendix A of part 72” to Part 73.
Pub. L. 108-458, 118 Stat. 3638, § 6802(d). This had the effect of
criminalizing the possession of “a non-overlap or overlap select biological
agent or toxin in sections 73.4 and 73.5 of Title 42” of the C.F.R. However,
three months later, HHS re-formatted its regulations, which, in relevant part,
resulted in its list of select agents and toxins-including ricin-being moved to a
section of the C.F.R. (§ 73.3) that is not referenced in 18 U.S.C. § 175b.
Story’s ruling is technically correct and is a defense attorney’s dream. But his justification of it is infuriating:
After HHS overhauled its regulatory numbering scheme, Congress had ample opportunity
to amend the statute to make its definition of “select agent” comport to the
Government’s interpretation. It has been 14 years, and Congress is yet to do
so. And there are plausible explanations why. For instance, Congress may
have decided that the unregistered possession of ricin, alone, is not conduct
sufficiently culpable to justify the commission of a federal crime. Or, Congress
may have assumed that the illegality of having certain biological agents and
toxins, like ricin, for nefarious purposes is sufficiently encapsulated in other
statutory provisions. See 18 U.S.C. § 175. The Court cannot say, but it is not
for the Court to disregard a clear statutory definition in favor of absent
language that may or may not have been excluded purposefully.
We are not talking here about a single agent, ricin, being left off the list due to a clerical error. The renumbering left the entire HHS non-overlapping list of agents out of the referenced sections. How on earth could Story believe that Congress would suddenly decide, in early 2005,  that the entire HHS non-overlapping list was no longer of concern? Granted, anthrax is on the overlap list and so is still covered under Story’s interpretation, but it should be pointed out that the Amerithrax investigation of the 2001 anthrax attacks was in full gear in 2005 in its march toward hounding Bruce Ivins to his death, so bioterror was a very high priority for Congress and law enforcement at the time of this reclassification. In fact, the boondoggle BioWatch program was launched in 2003 and so in 2005, the generalized fear of bioweapons was pervasive. Also, don’t forget the role of bioweapons in general in the Bush Administration run-up to the invasion of Iraq in 2003, complete with Colin Powell’s fake vial of anthrax.
Further evidence of the government’s intent on the select agent list can be found when one looks for the list itself. For example, this listing clearly shows the government had no intent to exclude the HHS non-overlapping agents and cites relevant statutory authority.
Story attempts, in part, to wriggle out of the deep hole into which he has dug himself by pointing out other ways that Gibbs could be charged. From a footnote in the order:
2 The Court notes, however, that the possession of ricin is not a wholly legal
endeavor. To the contrary, 18 U.S.C. § 175(a) provides:
Whoever knowingly develops, produces, stockpiles, transfers, acquires,
retains, or possesses any biological agent, toxin, or delivery system for
use as a weapon,… or attempts, threatens, or conspires to do the same,
shall be fined under this title or imprisoned for life or any term of years,
or both.
In assessing the constitutionality of this provision under the vagueness doctrine, the
Eleventh Circuit held, “The statute provides a person of ordinary intelligence with fair
warning that possessing castor beans, while knowing how to extract ricin, a biological
toxin, from the beans, and intending to use the ricin as a weapon to kill people, is
prohibited.” United States v. Crump, 609 F. App’x 621, 622 (11th Cir. 2015) (citing
United States v. Lebowitz, 676 F.3 d 1000, 1012 (llth Cir.2012) (per curiam)).

Interestingly, when I went back to look at one of my posts on James Everett Dutschke, who was charged with possessing ricin in Mississippi in 2013, I see that he was indeed charged under 18 U.S.C. § 175(a).

The damage that Story has done in this ruling may not be limited solely to the HHS non-overlapping agents being left out of the law. Another aspect of the garbled re-numbering of sections is that § 73.5 is referenced as a list of proscribed agents. In reality, the section is headed “Exemptions for HHS select agents and toxins”. I would argue that this is further evidence of a simple error and not legislative intent, because it renders the bill unintelligible. Instead of a list of banned agents, it is a list of those that are exempt from the law due to their use in laboratories for diagnosis or research. Although Story does make passing reference to the differences among those agents that are on the list to be banned, those that are excluded and those that are exempt, I fear that opponents of biological research could latch onto Story’s ruling in an attempt to argue that shipment of these research or diagnostic samples could be prosecuted as bioterrorism. That could have a chilling impact on research to protect us from these very agents.

Congress clearly needs to fix this mess, and fix it quickly. Simple language adjustment in 18 US Code§ 175b(a)(1) could restore the law to applying to the proper lists of agents while excluding or exempting those for which it is appropriate.

Joby Warrick Returns to Bioweapons Security Theater

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Last night, Joby Warrick put up a dutifully transcribed article  in which the intelligence community is warning us to be very afraid that North Korea suddenly has bioweapons capability. Warrick had posted the video embedded in the article a week earlier, perhaps in an attempt to soften the terrain ahead of publishing the article. The bioweapons security theater beat is not at all new to Warrick. Just a little over four years ago, I noted the weakness of claims by the intelligence community, again transcribed by Warrick, that Syria suddenly was going to produce bioweapons.

The Timing

As with any cranking of the propaganda machine, it’s always informative to look at the timing of both the current event and the components on which it has been built. The seeds of this one go back about two and a half years. As you may or may not recall, the Army announced in May of 2015 that it somehow managed to screw up and ship samples of live anthrax bacteria to South Korea. Seizing on the propaganda value of this development, within a little over a week, Kim Jong Un staged a tour of a “biotechnology facility”.  Warrick’s article last night, along with many other breathless accounts of North Korea’s sudden prowess in biological weapons, relies heavily on this blog post by Melissa Hanham analyzing images from Un’s tour of that facility. Information from Hanham also figures prominently in the analysis of North Korea’s bioweapons capability in this report from Harvard’s Belfer Center, which Warrick also relies on for his article. Laughably, the Belfer Center report adopts Rumsfeldian framing by speaking in terms of knowns and unknowns.

With rhetoric now reaching fever pitch on North Korea’s nuclear technology and missile technology, it feels a bit suspicious that we’re now going back to information that first surfaced in July of 2015. Also, with the Trump Administration looking for distraction from Mueller’s probe, something as sensational as a bioweapons scare coming from one of the current chosen enemies fits the bill quite nicely.

The Claims

Warrick warns us in his third paragraph that:

North Korea is moving steadily to acquire the essential machinery that could potentially be used for an advanced bioweapons program, from factories that can produce microbes by the ton, to laboratories specializing in genetic modification, according to U.S. and Asian intelligence officials and weapons experts.

Let’s move on to more specific accusations:

State-run news media described the institute as a factory for making biological pesticides — mainly, live bacteria that can kill the worms and caterpillars that threaten North Korea’s cabbage crop. But to U.S. analysts studying the video, the images provided an unexpected jolt: On display inside the military-run facility were rooms jammed with expensive equipment, including industrial-scale fermenters used for growing bulk quantities of live microbes, and large dryers designed to turn billions of bacterial spores into a fine powder for easy dispersal.

Many of the machines were banned from sale to North Korea under international sanctions because of their possible use in a bioweapons program. But Kim, wearing a white lab coat and trailed by a phalanx of scientists and military officers, appeared almost gleeful in showing them off, striking the same rapt pose as when he visits the country’s installations for nuclear weapons and long-range missiles.

Here is the photo with the fermenters in the background:

Here is the photo of the spray dryer mentioned above:

So the competing claims are that North Korea says this is a biopesticide facility that produces Bacillus thuringiensis for control of caterpillar pests on crops. The intelligence community is saying that this same equipment could be used to grow and weaponize the closely related Bacillus anthracis, the deadly bacterium used in the anthrax attacks of 2001.

The Reality

First, at least the Belfer Center report did finally get around to noting just how much of an effort is needed to develop and then deploy biological weapons:

It is unknown whether North Korea has the capability to weaponize all 13 types of agents, and whether North Korea has the capacity to produce a mass stockpile of stabilized biological agents. Regarding the first aspect, little information is available. The ROK Defense White Paper mostly mentions anthrax and smallpox, so these could be agents that North Korea has higher capability to weaponize. However, it is important to note that despite an investment of 40,000 personnel over 63 years (1928-1991), the Soviet Union’s BW program yielded only 13 weaponizable agents. Although increase in biological knowledge in the modern era could expedite weaponization, it is highly unlikely that all of North Korea’s agents are ready for weaponization.

So, yes, it appears that North Korea’s efforts, if there are any, fall far short of what the Soviet Union put into their bioweapons program.

But there are additional problems with Kim Jong Un’s facility. It doesn’t appear to me to work either as a biopesticide production facility or a bioweapon facility. Warrick does finally get around to some of the problems:

Some weapons experts were skeptical, noting the absence of biohazard suits and protective gear typically found in laboratories that work with deadly pathogens. But since the release of the images, subsequent examinations have poked holes in the official story about the factory’s purpose. For one thing, some of the machines shown in the video were not visibly connected to any pipes, vents or ductwork. Experts also have questioned why North Korea would buy expensive industrial equipment at black-market rates, just to make a pesticide that can be purchased legally, at vastly cheaper rates, from China.

Here is what an actual facility for mass production of Bt looks like:

This slide shows both an industrial-sized fermenter and spray dryer. Clearly, the equipment Kim Jong Un is showing falls far short of the size used in actual industrial production, although at least the collection of fermenters in his photo is larger than one would expect for a simple research facility. [Full disclosure: a former co-worker of mine was at one time one of the primary fermentation operators at the Wasco facility.]

There are further problems with the loose “dual use” language employed by all of those who want us to fear North Korea’s biological capabilities. If we focus on the central question of whether Bt or anthrax is produced by the facility, we must deal with the biological and engineering differences between such facilities. First, Bt is only infectious to insects and so the human protection protocols are only aimed at the normal precautions taken in industrial production of microbes where workers are protected from exposure to high concentrations of bacteria or bacterial debris, but infectious concerns are not present. Minor amounts of residue or aerosols are allowed in a Bt facility but would be fatal in an anthrax facility. The level of biocontainment in the North Korean photos would, at best, be consistent with Bt, but might even fall short of that.

Of course, one could argue that North Korean workers in an anthrax facility would be vaccinated. But that seems to me to be the key piece of evidence missing in all the warnings we are getting in this bit of theater. US export of the only anthrax vaccine produced internally is controlled, although the level of control was reduced somewhat in 2005. However, if NSA and CIA aren’t working hand in hand to monitor the shipment of every vial of anthrax vaccine shipped outside the US (whether produced here or not), I want my tax dollars back. And the fact that we aren’t hearing that North Korea has started vaccinating workers against anthrax in any of its biotechnology facilities makes me think that they haven’t started a serious effort on this front.

One further bit of difference between Bt and anthrax facilities concerns the particle size achieved in the final product coming out of the process. A biological difference comes into play here. In the case of Bt, the final product is applied to plant leaves. Caterpillars eating the leaves are then infected when the bacterial spores germinate in the gut. The particle size in this case is fairly unimportant as long as it gets consumed. For anthrax, infection occurs when anthrax spores are breathed in and the spores travel to the smallest passageway in the human respiratory system.  Individual spores are only about one micron (one millionth of a meter) in length. Some of the material in the anthrax attacks of 2001 was specially treated so that individual spores would become easily suspended in the air. A very infectious particle size would be in that same one micron range.

The same PowerPoint presentation I linked above for the Bt production facility has this slide on particle sizes for commercially available Bt:

Spray drying equipment that produces really small particle size is restricted in access. The controlling authority is commonly referred to as the Australia Group list. From their publication, we have this on spray dryers:

Spray dryers that can produce particle sizes below ten microns are tightly regulated and North Korea would have great difficulty purchasing this technology. It would be foolish, in my opinion, though, to even use a spray dryer for anthrax instead of the more advanced technology in my link above.

Conclusion

It seems to me that both North Korea and the US are engaging in hyperbole about North Korean capabilities in biological weapons. I find reason for concern in this exercise of security theater, but it is primarily based on overstated capabilities being used as a basis for starting conventional military action. Let’s hope North Korean anthrax capabilities don’t become the next aluminum tubes.

Joby Warrick Is the New Judy Miller

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Poor Joby Warrick. With Judy Miller so disgraced that Fox News had to issue a “she has nothing to apologize for” press release when they hired her back in 2008, Joby drew the short straw yesterday and was assigned to transcribe the hyped bullshit concerns arising from Israel Syria’s neighbors that Syria might be contemplating use of biological weapons. The entire Warrick article needs to be read to get a full feel for its credulous recitations of completely unfounded speculation being passed off as actual intelligence, but I will stick with just a few paragraphs. Warrick opens by making a completely baseless claim:

Last month’s alleged chemical attack near Damascus has re­focused attention on Syria’s 30-year-old biological weapons research and raised concerns about whether the government there could activate an effort to make a weapon.

Really, Joby? Aside from those “intelligence officials in two Middle East countries” who fed you this material, has anybody else voiced a concern that Syria is contemplating use of bioweapons, or even could produce bioweapons if they wanted to?

Even Warrick has to admit that any work on bioweapons in Syria is now over 30 years old. But that doesn’t deter Warrick and the spooks whispering in his ear:

Syria’s bioweapons program, which U.S. officials believe has been largely dormant since the 1980s, is likely to possess the key ingredients for a weapon, including a collection of lethal bacteria and viruses as well as the modern equipment needed to covert them into deadly powders and aerosols, according to U.S. and Middle Eastern officials and weapons experts.

Wow. the “US and Middle Eastern officials and weapons experts” guiding Warrick’s hands on the keyboard as he types are saying that despite not working on bioweapons for thirty years or so, they have the deadly organisms and equipment that would be needed to make “deadly powders and aerosols”.

Warrick and the spies who feed him have absolutely nothing on which to base this accusation. Let’s check a neutral source on what the real status of biotechnology capability in Syria is and whether it can be rapidly adapted to bioweapons. The Nuclear Threat Initiative provides a report on Syria’s potential bioweapons capability that was last updated in February of this year. They come to very different conclusions than Warrick (emphasis added):

In the past, unclassified statements by U.S. officials occasionally claimed reason to suspect Syria of maintaining an offensive BW program. [2] However, in contrast to discussions of Syrian chemical warfare (CW) capabilities, such claims have not included any details on the size and scale of Syria’s potential BW program, and are not presented alongside supporting evidence. Instead, discussions on this topic have focused on speculative extrapolations of Syrian dual-capable industry and on Syrian political motivations. Such analysis can be neither detailed nor comprehensive. Although the existence of a biotechnology industrial base would suggest that Syria has some indigenous expertise useful for developing a biological weapons capability, it does not imply and cannot confirm the existence of an offensive biological weapons program. Furthermore, given that Israel, a state that is understood to possess a nuclear arsenal and continues to occupy the Golan Heights, remains Syria’s primary security concern, and given the risk of “blowback” when deploying biological weapons, such weapons would be of questionable tactical desirability from a Syrian perspective. While public sources on the nature of Syria’s chemical and nuclear programs are limited, even less exists about Syria’s biological program, and “there is no hint of its existence from open sources.” [3]

The report goes on to detail what Syria’s biological industries do (again, emphasis added): Read more →

Why Didn’t DOJ Look More Closely at DTRA’s Role in 2001 Anthrax Attacks?

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The 317,000 square foot DTRA headquarters opened in 2005 to bring together the agency's 2000 employees.

[Note: This post has been updated to correct an error regarding the location of the Project BACUS facility.  Erroneous material has not been deleted but has been put into strikethrough font.]

In following up on yesterday’s announcement that the family of Robert Stevens, the first victim in the 2001 anthrax attacks, has settled their wrongful death suit with the US Government for $2.5 million, Marcy came across a number of documents recently released through the case. One of those documents got my attention from its title: “Integrated Capabilities Assessment of the U.S. Army Medical Research Institute of Infectious Diseases” (USAMRIID Capabilities pdf). I had anticipated that the document would be a technical assessment that would be relevant to the question of whether the facilities and equipment available to Bruce Ivins would have been appropriate for production of the anthrax spores used in the 2001 attacks. However, it turns out that the document was a report on a 1996 security assessment of the USAMRIID facility where Ivins worked. I almost moved on to other documents, but then I saw the list of agencies that conducted the review:

The last entry on the list is what stands out. The Defense Special Weapons Agency was folded into the newly formed Defense Threat Reduction Agency, or DTRA, in late 1998. And DTRA was important to me because they were the agency that carried out Project BACUS, first reported by Judy Miller on September 4, 2001. Miller’s Times article described DTRA building a facility at the Dugway Proving Grounds in Utah Nevada Test Site with a 50 liter fermenter capable of producing bioweapons microbes. The project was an exercise to determine how difficult it would be for authorities to spot a bioweapons production facility built by terrorists. Later, I found that in her bioweapons book published in 2001, Miller disclosed that the BACUS facility also is capable of weaponizing bacterial spores.

With those bits of history in mind, some of the findings from the 1996 assessment stand out. From the introductory material, we find this summary: Read more →