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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.

Senate Judiciary Committee Republicans Have No Excuse for Not Doing Something about White Supremacist Violence

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Last I checked, the following Republicans on the Senate Judiciary Committee have criticized white supremacists, violence, and/or Trump’s appeasement of the former in Charlotteville.

Chuck Grassley, Senate Judiciary Committee Chair:

What ” WhiteNatjonalist” are doing in Charlottesville is homegrown terrorism that can’t be tolerated anymore that what Any extremist does

Orrin Hatch, President pro tempore:

We should call evil by its name. My brother didn’t give his life fighting Hitler for Nazi ideas to go unchallenged here at home

Their tiki torches may be fueled by citronella but their ideas are fueled by hate, & have no place in civil society.

Lindsey Graham, Chair of Subcommittee on Crime and Terrorism:

The South Carolina Republican called on Attorney General Jeff Sessions to go to Virginia and “personally handle domestic terrorism investigations” and alleged civil rights abuses by the Ku Klux Klan and neo-Nazis “who took this young woman’s life.”

Graham was referring to Heather Heyer, 32, who was killed when a car ran into a group of counter-protesters Saturday in Charlottesville where white supremacists and neo-Nazis were holding a “Unite the Right” rally. Many more were injured.

Graham additionally proposed the Departments of Justice and Homeland Security form a task force on the threat of white supremacist groups and report back to Congress with potential solutions for cracking down on them.

“This is an opportunity for the Trump administration to come down like a hammer on white supremacists,” Graham said during a news conference in his Columbia office. “And I hope they do.”

John Cornyn, Chair of Subcommittee on Border Security and Immigration and Senate Majority Whip:

No place for the bigotry & hate-filled violence in . These actions should be condemned in the strongest possible terms.

And (update, from August 17):

We’ve all been shocked that the unhealed wounds of the nation’s racial divide flared up in such a surprising and disturbing way,” Cornyn said in a Chronicle interview. “I think the president had an opportunity to send a message that would unite America behind our common resolve to heal those wounds and unite our country, and unfortunately I don’t think he did that.”

Ted Cruz, Chair of Subcommittee on the Constitution, who while Chair of the Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts, had a hearing on the importance of naming Islamic terrorism Islamic terrorism:

It’s tragic and heartbreaking to see hatred and racism once again mar our great Nation with bloodshed. Heidi’s and my prayers are with the loved ones of those killed and injured in the ongoing violence in Charlottesville. The First Amendment protects the rights of all Americans to speak their minds peaceably, but violence, brutality, and murder have no place in a civilized society.

The Nazis, the KKK, and white supremacists are repulsive and evil, and all of us have a moral obligation to speak out against the lies, bigotry, anti-Semitism, and hatred that they propagate. Having watched the horrifying video of the car deliberately crashing into a crowd of protesters, I urge the Department of Justice to immediately investigate and prosecute this grotesque act of domestic terrorism.

These bigots want to tear our country apart, but they will fail. America is far better than this. Our Nation was built on fundamental truths, none more central than the proposition ‘that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.’

But,

“One of the things we’re seeing going on is the media and the Democrats are, to the surprise of no one, demagoguing this issue and using it for political advantage,” Cruz said. “So, in the media’s telling, they want to tar and feather any Republican, any conservative, and paint us all as these crazy racist nutbags.”

Jeff Flake, Chair of Subcommittee Privacy, Technology, and the Law):

We can’t accept excuses for white supremacy & acts of domestic terrorism. We must condemn. Period.

Flake, more generally:

Under our Constitution, there simply are not that many people who are in a position to do something about an executive branch in chaos. As the first branch of government (Article I), the Congress was designed expressly to assert itself at just such moments. It is what we talk about when we talk about “checks and balances.” Too often, we observe the unfolding drama along with the rest of the country, passively, all but saying, “Someone should do something!” without seeming to realize that that someone is us. And so, that unnerving silence in the face of an erratic executive branch is an abdication, and those in positions of leadership bear particular responsibility.

Ben Sasse, Chair of Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts:

“I refuse to accept that mankind is tragically bound to the starless midnight of racism… Unconditional love will have the final word” -MLK

“My dream is of a place and a time where America will once again be seen as the last best hope of earth.” -Abraham Lincoln

“We hold these truths to be self-evident, that ALL men are created equal, that they are endowed, by their Creator with…unalienable Rights”

These people are utterly revolting–and have no understanding of America. This creedal nation explicitly rejects “blood & soil” nationalism.

John Kennedy:

Violence and hatred are never the answer.

There are 20 members of the Senate Judiciary Committee, 11 Republicans and 9 Democrats. Of the Republicans, eight have made statements at least condemning the violence in Charlottesville, even if Cornyn and Kennedy, among others, are obviously issuing empty condemnations.

If even two of the Republicans who’ve made statements condemning the right wing violence in Charlottesville are serious — or more specifically serious about actions that DOJ must take, as in comments that both Lindsey and Cruz made — then they’ve got the numbers to make it happen.

They’ve got the numbers to force DOJ to refund the Life After Hate program, which white supremacist Seb Gorka’s wife Katherine defunded. They’ve got the numbers to ask Jefferson Beauregard Sessions whether his DOJ will treat this act of terrorism as terrorism. They’ve got the numbers to ask whether FBI ignored warnings of surging white supremacism.

Republicans often complain that there’s nothing they can do about their unmanageable President. This is one case where that’s patently false.

Breaking Point: Media Finally Reporting on Violence Tied to Right Wing Extremism

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In April of Barack Obama’s first year in office, right wing America had a collective meltdown when the Department of Homeland Security dared to write a report (pdf) on right wing extremism and the domestic terrorists that could be tied to the movement. Michelle Malkin went into a full mouth froth, declaring that the report was an Obama DHS hit job on conservatives. ABC was quick to join in, documenting more of the responses of “conservatives”. Sadly, Obama and the DHS backed down meekly and the concept was quickly scrubbed from public debate.

But attacks carried out by the very types of right wing radicals described in the report have continued. The toll from these attacks appears to have gotten high enough that the media finally has found its voice again and is willing to document the carnage while connecting the dots. After the deadly shootings at a Jewish center in the Kansas City area in April of this year, Peter Bergen and David Sterman penned an op-ed piece carried by CNN. They dared title the piece “U.S. right wing extremists more deadly than jihadists” and produced documentation to back up their damning headline:

In fact, since 9/11 extremists affiliated with a variety of far-right wing ideologies, including white supremacists, anti-abortion extremists and anti-government militants, have killed more people in the United States than have extremists motivated by al Qaeda’s ideology. According to a count by the New America Foundation, right wing extremists have killed 34 people in the United States for political reasons since 9/11. (The total includes the latest shootings in Kansas, which are being classified as a hate crime).

By contrast, terrorists motivated by al Qaeda’s ideology have killed 21 people in the United States since 9/11.

With Sunday’s killing of two policemen and a “good guy with a gun” in Las Vegas by another pair of right wing extremists, Paul Waldman was able to take to the blog pages of the Washington Post to tie these violent attacks to the venom-filled rhetoric of the right:

But what I am saying is this: there are some particular features of conservative political rhetoric today that help create an atmosphere in which violence and terrorism can germinate.

The most obvious component is the fetishization of firearms and the constant warnings that government will soon be coming to take your guns. But that’s only part of it. Just as meaningful is the conspiracy theorizing that became utterly mainstream once Barack Obama took office. If you tuned into one of many national television and radio programs on the right, you heard over and over that Obama was imposing a totalitarian state upon us. You might hear that FEMA was building secret concentration camps (Glenn Beck, the propagator of that theory, later recanted it, though he has a long history of violent rhetoric), or that Obama is seeding the government with agents of the Muslim Brotherhood. You grandfather probably got an email offering proof that Obama is literally the antichrist.

Writing over at the Bulletin of the Atomic Scientists, Charles Blair brings us the sobering math on the recent growth of these radical groups: Read more →

Terrorist Training Camp Busted in Central Florida

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Osceola County mugshot of Marcus Faella

In a series of arrests that began over the weekend, authorities in Central Florida have now arrested ten individuals tied to the racist skinhead organization American Front. Initial arrests included two on Friday and five more on Sunday. While the first two arrested have already been released on bail, there were three more arrests announced this morning.

From the AP report in the Miami Herald:

Seven people with ties to what Florida law enforcement officials called a white supremacist and known domestic terrorist organization were arrested this past weekend on felony conspiracy and hate crime charges in a FBI Joint Terrorism Task Force operation.

Authorities arrested 39-year-old Marcus Faella, and wife 36-year-old Patricia Faella, on Friday, along with 29-year-old Mark McGowan and his wife 25-year-old Jennifer McGowan. Others arrested and taken to Osceola County Jail were 28-year-old Diane Stevens, 25-year-old Paul Jackson and 22-year-old Kent McLellan.

Each was charged with paramilitary training, attempt to shoot into an occupied dwelling and evidence of prejudices while committing offense, a first-degree felony.

It is a felony in Florida to participate in paramilitary training for use “in furtherance of, a civil disorder within the United States.” The “prejudices” charge falls under Florida’s hate crimes law.

Florida Ninth Circuit State Attorney Lawson Lamar said in a statement that his office will review the investigation and “will file the appropriate criminal charges.”

The article goes on to identify those arrested as belonging to the hate group American Front. A partially outdated description of the group can be found here on the Southern Poverty Law Center’s website. The ADL’s concise description of the group:

The American Front is a racist skinhead group that is active in several states around the country. The group espouses an anti-Semitic, white supremacist ideology and disseminates its message in public events that demonize Jews, immigrants, and other minorities. Before the current leader took the helm of the group in 2002, American Front was unusual in that it espoused “Third Positionist” beliefs, a peculiar blend of right-wing extremism that rejects both capitalism and communism in favor of an ill-defined “third way.”

Although American Front is not particularly large, it is one of the oldest continuously active racist skinhead groups in the United States. However, few original members are still with the group; most of the current membership is new. American Front has a legacy of criminal activity that ranges from brutal hate crimes to acts of terrorism.

We learn more about the group in the SPLC’s blog post on the initial arrests: Read more →