September 11, 2001 : Attack on America
Statement of James S. Reynolds Before the Committee on Judiciary, Subcommittee on Technology, Terrorism and Government Information; November 6, 2001

NOVEMBER 6, 2001

Madam Chair and Members of the Subcommittee, thank you for the opportunity to appear before you today. I am James S. Reynolds, Chief of the Terrorism and Violent Crime Section of the Criminal Division, United States Department of Justice. I appreciate the opportunity to appear before you today to discuss the existing federal statutes relating to dangerous biological agents and toxins.

In recent years a growing consensus has emerged among law enforcement officials involved with counterterrorism that the most serious form of terrorist threat confronting the United States relates to the potential use of a biological weapon. This view is shared by numerous academics and health care professionals, and is reinforced by the pervasive consequences currently being confronted by our nation as a result of the recent criminal dissemination of anthrax.

For example, Dr. D. A. Henderson, who has been appointed the Director of the Office of Public Health Preparedness in the Department of Health and Human Services, and who was formerly Director of the Johns Hopkins Center for Civilian Biodefense Studies, advised a Senate subcommittee that "of the weapons of mass destruction, the biological ones are the most greatly feared but the country is least well prepared to deal with them." Subcommittee on Labor, Health and Human Services, and Education of the Senate Committee on Appropriations, Hearing on Bioterrorism (March 16, 1999).

Similarly, Dr. Margaret A. Hamburg, former Assistant Secretary for Planning and Evaluation of the Department of Health and Human Services advised a House subcommittee that "a bioterrorist event is different from all other forms of terrorism in its potential to precipitate mass behavior responses such as panic, civil disorder and pandemonium." Subcommittee on Public Health of the House Committee on Health, Education, Labor and Pensions (March 25, 1999).

In recent years, the Department of Justice has noted that there is increasing intelligence of interest by terrorists in the use of biological weapons both in the United States and abroad. Five-Year Interagency Counter-Terrorism and Technology Crime Plan submitted by the Attorney General to Congress on December 31, 1998. This growing interest in biological agents and their potential for use as weapons is reflected in the significant increase in the number of cases the FBI has encountered over the past several years involving biological agents and toxins, including hoaxes and threats involving such materials. Most recently, the United States and its citizens have been the subject of anthrax disseminations which have resulted in deaths and illness, and the interruption of governmental processes.

As a government, we are expending vast sums to prepare for the eventuality of an attack involving weapons of mass destruction. While those efforts are critically needed, the most effective way to counter a biological weapons attack is by preventing it. As Dr. Hamburg noted in her March 25, 1999, congressional testimony, "measures that will deter or prevent bioterrorism will be far and away the most cost effective means to counter such threats to public health and social order." The consequences of the current anthrax incidents serve to underscore the importance of prevention.

To facilitate that paramount objective, improvements were recently made to existing federal criminal statutes. Prior to the amendments of October 26, 2001 (the USA PATRIOT Act, Pub. L. 107-56), the key federal statutes pertinent to bioterrorism have been 18 U.S.C. §§ 175 and 2332a. Section 175 of Title 18, U.S. Code, makes it a crime to knowingly possess, or to threaten, attempt, or conspire to possess, any biological agent, toxin, or delivery system for use as a weapon. Section 2332a of Title 18, U.S. Code, currently makes it a crime to use, or to threaten, attempt, or conspire to use, a weapon of mass destruction which involves a disease organism.

While these statutes have been of value to law enforcement, they require a close nexus between the possession of a biological agent and its use as a weapon. By the time a biological weapon or device has been created or is under development, it may be too late to undertake action to prevent a biological weapons attack. Law enforcement needs a means to intervene earlier in the chain of events that could lead to the potentially catastrophic use of a biological weapon.

On October 26, 2001, 18 USC § 175 was amended. Among the changes was the insertion of a provision that makes the knowing possession of any biological agent or toxin a crime if the agent is of a type or in a quantity that, under the circumstances, is not reasonably justified by a "prophylactic, protective, bona fide research, or other peaceful purpose." Additionally, the amendment creates a category of restricted persons who are barred from possessing any biological agent that has been designated under the Code of Federal Regulations as a "select agent." These are biological agents and toxins that have the potential to pose a severe threat to the public health and safety. The term "restricted person" includes individuals under indictment for a felony or who have been convicted of a felony, unlawful users of controlled substances, illegal aliens, and persons who have been adjudicated as a mental defective or who have been committed to a mental institution. Knowing possession of a select agent by any restricted person constitutes a felony.

These recent amendments to the federal biological terrorism statutes will be of assistance to federal law enforcement in pursuing action designed to prevent potentially tragic bioterrorism acts. For example, if probable cause is developed that a person possesses a biological agent and such possession is not reasonably related to a peaceful purpose, an arrest warrant can be sought for the purpose of arresting the individual before the biological agent is used in a manner that endangers the public. Previously, action could not be taken against the possessor of the agent absent proof that he possessed the agent for use as a weapon. Similarly, if probable cause is developed that a restricted person, such as a felon, is in possession of a select agent (i.e., any one of a group of particularly deadly biological agents), law enforcement can take action against that individual without delay.

In light of the recent anthrax incidents, there is a need for additional changes in federal law relating to biological terrorism. For example, and as Secretary Allen notes in his testimony, the Department of Health and Human Services recently submitted a package of such changes to Congress for its consideration.

Another area of legislation that merits consideration relates to the creation of a statute that specifically addresses hoaxes which involve purported biological substances. Such a statute could also address hoaxes involving chemical, nuclear, and radiological substances. Persons who convey information, knowing it to be false, indicating the existence of a hazard involving a biological substance, cause a public safety response that drains governmental resources and diminishes the capability to respond to actual hazardous material incidents. Moreover, such hoaxes inconvenience the public and often exact a significant psychological toll from victimized members of the public who are placed in the position of fearing that their health or life is endangered.

Madam Chair, that concludes my prepared remarks. I will be happy to respond to any questions that you or other Members of the Subcommittee may have at this time.

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