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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.

DNA Sequence Analysis Shows Ebola Outbreak Naturally Ocurring, Not Engineered Virus

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In an electron microscope image that has been colorized, Ebola virus particles in blue are being extruded from an African Green Monkey kidney cell in yellow. Photo produced by National Institute of Allergy and Infectious Diseases, NIH.

In an electron microscope image that has been colorized, Ebola virus particles in blue are being extruded from an African Green Monkey kidney cell in yellow, grown in a laboratory cell culture system. Photo produced by National Institute of Allergy and Infectious Diseases, NIH.

I had really hoped I wasn’t going to have to write this post. Yesterday, Marcy emailed me a link to a Washington’sBlog post that breathlessly asks us “Was Ebola Accidentally Released from a Bioweapons Lab In West Africa?” Sadly, that post relies on an interview with Francis Boyle, whom I admire greatly for his work as a legal scholar on bioweapons. My copy of his book is very well-thumbed. But Boyle and WashingtonsBlog are just wrong here, and it takes only seconds to prove them wrong.

Shortly after getting the email and reading the blog post, I sent out tweets to this summary and this original scientific report which describe work on DNA analysis of Ebola isolated from multiple patients during the current outbreak. That work conclusively shows that the virus in the current outbreak is intimately related to isolates from previous outbreaks with changes only on the order of the naturally occurring mutation rate known for the virus. Further, these random mutations are spread evenly throughout the short run of the virus’s genes and there are clearly no new bits spliced in by a laboratory. Since I wasn’t seeing a lot of traction from the Washington’sBlog post, I was going to let it just sit there.

I should have alerted last night when I heard my wife chuckling over the line “It is difficult to describe working with a horse infected with Ebola”, but I merely laughed along with her and didn’t ask where she read it.

This morning, while perusing the Washington Post, I saw that Joby Warrick has returned to his beat as the new Judy Miller. Along with the line about the Ebola-infected horse, Warrick’s return to beating the drums over bioweapons fear boasts a headline that could have been penned by WashingtonsBlog: “Ebola crisis rekindles concerns about secret research in Russian military labs“.

Warrick opens with a re-telling of a tragic accident in 1996 in a Soviet lab where a technician accidentally infected herself with Ebola. He uses that to fan flames around Soviet work in that era:

The fatal lab accident and a similar one in 2004 offer a rare glimpse into a 35-year history of Soviet and Russian interest in the Ebola virus. The research began amid intense secrecy with an ambitious effort to assess Ebola’s potential as a biological weapon, and it later included attempts to manipulate the virus’s genetic coding, U.S. officials and researchers say. Those efforts ultimately failed as Soviet scientists stumbled against natural barriers that make Ebola poorly suited for bio­warfare.

The bioweapons program officially ended in 1991, but Ebola research continued in Defense Ministry laboratories, where it remains largely invisible despite years of appeals by U.S. officials to allow greater transparency. Now, at a time when the world is grappling with an unprecedented Ebola crisis, the wall of secrecy surrounding the labs looms still larger, arms-control experts say, feeding conspiracy theories and raising suspicions.

/snip/

Enhancing the threat is the facilities’ collection of deadly germs, which presumably includes the strains Soviet scientists tried to manipulate to make them hardier, deadlier and more difficult to detect, said Smithson, now a senior fellow with the James Martin Center for Nonproliferation Studies, a research institute based in Monterey, Calif.

“We have ample accounts from defectors that these are not just strains from nature, but strains that have been deliberately enhanced,” she said.

Only when we get three paragraphs from the end of the article do we get the most important bit of information to be gleaned from the Soviet work on Ebola:

Ultimately, the effort to concoct a more dangerous form of Ebola appears to have failed. Mutated strains died quickly, and Soviet researchers eventually reached a conclusion shared by many U.S. bio­defense experts today: Ebola is a poor candidate for either biological warfare or terrorism, compared with viruses such as smallpox, which is highly infectious, or the hardy, easily dispersible bacteria that causes anthrax.

Note also that, in order to make Ebola more scary, Warrick completely fails to mention the escape of weaponized anthrax from a Soviet facility in 1979, infecting 94 and killing 64, dwarfing the toll from the two Ebola accidents.

And lest we calm down about Ebola and the other bioweapons the Soviets worked on, Warrick leaves us this charming tidbit to end the article: Read more →

ISIS Fearmongering Now Features Undeclared Syrian Toxins Changing Hands

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Today’s New York Times wants us to be very afraid because Samantha Power tells us that Syria may have failed to declare some of its chemical weapons (all declared category 1 materials have been destroyed) and those materials just might fall into the hands of the ISIS evil monsters.  This is a very interesting development because now with ISIS as the most evil operator out there, the Syrian WMD’s that we have been fearmongering about now are scarier in the hands of ISIS than they are in the hands of Bashar al-Assad, whom many believe was responsible for the deadly August, 2013 sarin attack in Ghouta.

The long journey of Syrian WMD’s and just who makes them scary is a case study in the process of intelligence and diplomatic sources feeding propaganda to a willing press. Recall that just after the Ghouta attack, Joby Warrick was used,  in a very Judy Miller fashion, to try to develop fear of a probably non-existent Syrian bioweapons capability. Less than a month after that feeble attempt to claim bioweapons in Syria’s arsenal, Warrick was dumbfounded that ricin (see below for a description of this toxin) appeared on the list of materials that Syria declared for destruction (ricin did not appear anywhere in Warrick’s “documentation” of Syria’s bioweapons capability just a month earlier):

The movement of chemicals and equipment in recent days — which initially spurred fears that Syrian officials were trying to hide parts of their stockpile — suggests instead that the weapons are being consolidated ahead of a first visit by inspection teams that arrived in the country last week, administration officials said.

The activity has contributed to a cautious optimism among U.S. officials over the prospects for quickly dismantling the chemical arsenal. Syrian officials a week ago turned over their first inventory of chemical weapons and storage sites, a list that U.S. analysts described as detailed, although incomplete.

The records have helped shed light on a sizable Syrian stockpile that U.S. officials say contains hundreds of tons of precursors for the nerve agents sarin and VX, as well as a surprise: ricin, a highly lethal poison derived from castor beans.

Yesterday, The Intercept finally (the document is marked as having been approved for release just before last Christmas!) liberated a cache of email conversations (pdf) taking place between a number of national security reporters and the CIA’s Office of Public Affairs.  The document is 574 pages long, but I want to focus on only one email to the office and the reply it generated, because it fits perfectly into this overall pattern of intelligence (and diplomatic) operatives catapulting propaganda with the eager cooperation of sychophantic reporters and because it mentions ricin. The email in question comes from Wall Street Journal reporter Siobhan Gorman and appears to be sent to at least two redacted recipients at CIA and mentions ricin in the context of Syria:

Gorman email

 

Okay. So this email takes place in July of 2012, just over a year before the Ghouta attack that used sarin.

Before we get to more of this story, a bit of background on ricin is in order. Read more →

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 →

Whatever Should We Do About These New Biotechnology Capabilities?

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I've held onto this nifty comic for 30 years, knowing it would come in handy some day.

I’ve held onto this nifty comic for 30 years, knowing it would come in handy some day.

My high school days were filled with intrigue and controversy at the national level. On the political front, the Watergate scandal was playing out, with Nixon resigning in the summer between my junior and senior years. Another drama was also playing out at that time, but I only became fully aware of it a few years after its most dramatic events. In July of 1974, only a month before the Nixon resignation, a remarkable publication (pdf) appeared in the Proceedings of the National Academy of Sciences. First, the paper is remarkable for its lack of an author byline. The members of the committee who authored the publication are listed at the very end. More remarkable still is that the publication marked the announcement of a voluntary moratorium by biological scientists. Several types of constructs using newly developed gene-splicing capabilities would not be attempted until the group had more fully studied the risks involved and come up with a plan for mitigating these risks.

Just under a year later, a follow-up publication (pdf) in the same journal appeared. This time there was an author list (and they finally let a woman join the authors–Maxine Singer had been involved in the discussions all along but was not listed in the 1974 paper). The risk mitigation strategy proposed in this paper has set the stage for the bulk of the work with recombinant DNA that has followed (and which allowed me to get a PhD in Molecular Biology in 1983). In the 1975 paper, Paul Berg and colleagues described a graduated level of biological and physical containment of organisms generated in recombinant DNA experiments, with the level of containment based on the relative risk perceived for the new DNA combinations that were being generated.

It should be noted that the concept of working with dangerous biological organisms was not new at all. Infectious diseases have been studied throughout the history of medicine and so the concept of biological containment of dangerous pathogens was not new to these scientists. They relied on these established practices of containment, which have continued to evolve into the current containment guidelines such as those published by the Centers for Disease Control (pdf) for containing pathogens.

Work with recombinant DNA took off quickly once the moratorium was lifted and a number of wonder drugs are now in use through this technology. Engineered plants are also in widespread use in agriculture, but implementation at least in the case of Bt corn has been mismanaged to the point that resistance is beginning to break out.

Fast forward to my impending old age and a very different sort of moratorium reared its head in a very ugly way in December of 2011. Read more →

BioWatch: Even Stupider Than Reagan’s “Star Wars” System

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On July 31 of this year, President Barack Obama signed a cover letter attached to the White House release of the National Strategy for Biosurveillance (pdf). The misguided premise on which this strategy (and the underlying boondoggle of the program known as BioWatch) rests stands out clearly in the President’s opening sentence:

There is no higher priority than the security and safety of the American people.

The mass delusion that total safety is both achievable and worth the tremendous sacrifices of resources and liberties that would be needed to even get close to such a state got a huge boost in President Ronald Reagan’s watershed “Star Wars” speech of March 23, 1983, giving birth to the Strategic Defense Initiative. It was clear from the start that this program had no chance of working as Reagan dreamed it, but massive amounts of money went into the program anyway, as William Broad described last month (emphasis added):

Since the 1980s, when President Ronald Reagan began the modern hunt for defenses against long-range missiles, Washington has spent more than $200 billion devising ways to hit incoming enemy warheads that move at speeds in excess of four miles per second. Critics have long faulted the goal as delusional, saying that any country smart enough to make intercontinental ballistic missiles could also make simple countermeasures sure to foil any defense.

President George W. Bush announced the program that would become BioWatch as a part of his larger Project Bioshield in his 2003 State of the Union address (again, emphasis added):

We’ve intensified security at the borders and ports of entry, posted more than 50,000 newly trained federal screeners in airports, begun inoculating troops and first responders against smallpox, and are deploying the nation’s first early warning network of sensors to detect biological attack.

/snip/

I thank the Congress for supporting these measures. I ask you tonight to add to our future security with a major research and production effort to guard our people against bio-terrorism, called Project Bioshield.

The budget I send you will propose almost $6 billion to quickly make available effective vaccines and treatments against agents like anthrax, botulinum toxin, ebola and plague. We must assume that our enemies would use these diseases as weapons, and we must act before the dangers are upon us.

(APPLAUSE)

The monitoring system that is now BioWatch is rife with problems. David Willman of the Los Angeles Times has continuously documented the many problems with and failings of BioWatch. He has informed us of the extremely high false positive rate from the currently deployed version of the system and has followed in real time the failures as DHS has forged ahead in purchasing the next generation of the technology before it is ready.

Willman’s latest article, carried by McClatchy, reveals jaw-dropping failures by the BioWatch system along with a cynical cover-up by the Department of Homeland Security: Read more →