In his book Bioviolence, DePaul University International Law Professor Barry Kellman seeks to mobilize the world to counter the deliberate use of microorganisms to inflict harm—a uniquely dangerous yet uniquely accessible threat.
The title, Bioviolence, cuts through long-standing debates over whether one person's terrorist could be another's freedom fighter, or whether a given act of violence is a crime, an act of terrorism, or an act of war. These different cases need to be treated differently in detail, but considering them all as “bioviolence” reinforces the global norm that any use of a biological agent to inflict harm is categorically condemned.
Kellman outlines the threat historically and technically, covering both state and nonstate programs. He points out that the power of biological weapons to kill and injure; their silent, delayed, and potentially transmissible effects; their accessibility; and their potential for subsequent attacks make them not only potent but also particularly disruptive. “If you want to stop modern civilization in its tracks,” says Kellman, “bioviolence is the way to go.”
Although Kellman acknowledges that our lack of experience with biological attacks leaves considerable room for controversy regarding the magnitude of their threat, he takes issue with those who would discount either the intent of terrorists to use bioviolence or their ability to do so successfully. He addresses intent with an impressive collection of evidence regarding Al Qaeda's interest in biological weapons, while reminding us that “even more worrisome is the bio-offender that we do not know about.” And to those who question the ability of groups to master an unfamiliar set of technologies, Kellman replies that such skepticism may be “well-founded for the moment, but [it] offers absolutely no security for tomorrow. Indisputably, bioviolence is getting easier to do with each passing day.” The evolution in the power and accessibility of bioscience—while clearly to the benefit of mankind—also increases the risk of illegitimate applications. Stating his concerns in a legal vernacular, Kellman finds that “there is opportunity and there is motive.”
Kellman lays out a comprehensive and far-reaching set of responses to the threat of bioviolence, some of which will no doubt prove to be even more controversial than his assertions about the threat. His strategy consists of four components:
complication, or measures to deny terrorists the capabilities they need and to make their efforts easier to detect;
resistance, or the conduct of research to counter bioviolence (i.e., through development of therapeutics, prophylactics, and vaccines) in ways that minimize the exacerbation of bioviolence;
preparedness, or mitigating damage in an attack through early detection, response, and containment; and
nonproliferation, or measures to inhibit state-level development of biological weapons in violation of the existing Biological Weapons Convention.
Preparedness may be the most straightforward. Kellman presents a thorough explanation of preparedness and response options, and particularly their legal implications. The reader gets an overview of the strengths and weaknesses of measures such as protecting air circulation systems and water supplies, the deployment of environmental sensors to detect pathogens, health surveillance systems, microbial forensics, treatment of victims, and the stockpiling and distribution of medical resources. In addition, the author devotes attention to legal issues such as compulsory medical treatment of victims, quarantines, and the right to privacy of medical information. In a later section, Kellman also takes on liability and intellectual property issues related to development of therapeutics and vaccines. Overall, he finds the magnitude of the preparedness and response mission to be daunting, and the measures now in place to be insufficient—reasons why prevention (or, as he calls it, complication) need to be pursued as well. “Now and for the foreseeable future,” he concludes, “response planning is in many respects a self-congratulatory myth.”
Kellman's discussion of resistance addresses the fact that advances in science and technology to fight disease will inevitably develop knowledge and capability that could be misused to exacerbate that threat. In this section, he comes down firmly against governmental constraints on the conduct or communication of science, on the basis not only of the adverse consequences of limiting beneficial research and constraining freedom of inquiry but also out of concern as to what might become the politicized control of science. Consistent with this position, Kellman forcefully argues that the capacity to conduct scientific research must be bolstered in developing countries—including those that might be thought likely havens for terrorist groups. These countries, more than others, need to understand and apply the tools to deal with bioviolence.
Kellman recounts the conclusions of a National Academies panel (on which he served) that focused on the risks posed by the misuse of biological research. That panel's landmark 2004 study, Biotechnology Research in an Age of Terrorism, acknowledges the risks posed by developments in bioscience and biotechnology, but argues that the way to deal with them is through increased awareness and self-governance on the part of the scientific community (NRC 2004). Kellman appears to support this report's findings, but he does not believe they go far enough. In addition to urging a substantially strengthened role for law enforcement—discussed below—he calls for the bioscience community to “demonstrate a more substantial commitment” to policies the National Research Council did not address, such as professional certification of scientists (extending all the way to identification of their individual activities) and the encouragement and protection of whistleblowers.
The most controversial aspects of Kellman's approach fall under complication, which he assigns to law enforcement. The problem, however, is that law enforcers in most nations have inadequate authority and woefully insufficient information to fulfill this mission. The first requirement, therefore, is to criminalize activities that could lead to bioviolence, which has been done in the United States but in too few other countries. Such laws are necessary to give police the authority to conduct investigations, but the US statute illustrates the difficulties: it is a federal crime to possess a biological agent only when doing so is “not reasonably justified” by bona fide research or other legitimate purpose, and when the agent has not been cultivated or extracted from its natural source.
While cautioning against overbroad regulation, infringement on scientific autonomy, or the violation of personal privacy, Kellman proposes closing the information gap by requiring the submission of information on pathogens, critical laboratory equipment, and facilities, and by linking such information with data on criminal networks to uncover indications of illicit activity. He also posits such mechanisms as marking pathogens by coding their DNA and tracking equipment with global positioning system transponders, and he anticipates eventually extending such a monitoring system internationally. It is not clear whether the activities of individual scientists would be monitored: his discussion of data reporting states that they would not be, whereas a different section on scientific self-governance concludes that oversight that does not “identify individual scientists and...keep track of their activities” is not real oversight at all. Perhaps the distinction is who would be doing the monitoring.
[I]f there is a choice between attempting to monitor scientific activity in the name of security and attempting to control it, I would support monitoring.
Whether these proposals should be implemented is a different question from whether they should be discussed. In general, if there is a choice between attempting to monitor scientific activity in the name of security and attempting to control it, I would support monitoring—and given the globally consequential nature of the misuse of bioscience and biotechnology, the option of “neither one” may not be available. I therefore welcome Kellman's willingness to offer proposals such as these, and I hope they will receive serious attention.
On the other hand, his case for extensive monitoring and reporting of scientific activity is far from compelling. Any successful measure to mitigate bioviolence has to be useful, in that it has to have some reasonable expectation of reducing risk, as well as feasible, in that it must be implementable at acceptable cost (see Epstein 2003). Monitoring systems face the challenge of being sensitive enough to identify questionable activity without being rendered useless by false alarms. I doubt that the system described here would pass that test unless it would be far more intrusive than any party would find acceptable, given the diversity and extent of the legitimate global bioscience and biotechnology enterprise, along with the relatively low barriers facing those who would work outside it. But in laying out this proposal, Kellman puts the onus on critics to come up with something better, or to demonstrate that its costs exceed its anticipated benefits.
Under the fourth component of his strategy—nonproliferation—Kellman addresses two challenges to the Biological Weapons Convention regime: the development of “nonlethal” or incapacitating biological agents, and the national pursuit of biodefense research programs. For the former, he provides an excellent portrayal of pro and con positions. For the latter—which at the technical level can be very difficult to distinguish from an offensive weapons program—he calls for measures that include translucency, or partial openness, in information sharing. Although complete transparency might allay suspicion that an ostensibly defensive program was actually a front for secret offensive activity, it would also confer undue advantage to those seeking to defeat those defenses.
In the concluding section of the book, Kellman returns to his original disciplinary base—international law—to discuss global governance. He finds that the confluence of evolving bioscience and nonstate threats transcend and undercut the ability of nation-states to ensure their own security, and he calls for additional United Nations (UN) bodies to take on coordination, harmonization, and investigation. The latter mission, the most contentious of these, would not build on the existing Biological Weapons Convention but rather draw on the much more robust powers of the UN Security Council.
All told, this is an important book. It provides a comprehensive view of the bioviolence threat and proposes a diverse, integrated, and provocative set of approaches for dealing with it. It challenges our thinking and forces us to revisit assumptions regarding individual liberty and community responsibility. We can disagree with this book—but we cannot ignore it.