Geneva, Switzerland — Questions concerning the compliance of the United States with the international treaty, the Biological Weapons Convention, came to a head recently during the Seventh Review Conference of the Convention, which is being held now in Geneva, Switzerland at the United Nations.
The most recent compliance report, listed in the BWC catalogue as BWC/CONF.VII/INF.2/Add.1, has failed to quash concerns as to the reliability of statements made by the United States as to its compliance with obligations under the BWC.
The specific concerns focus on the United States’ lack of disclosure of a law which amends the prior biological weapons statute. The original statute is entitled the Biological Weapons Statute–Title 18 Chapter 10 Section 175 of the U.S. code. The amended law, which is entitled The Expansion of the Biological Weapons Statute (Section 817 of the USA PATRIOT Act) radically changes the legal culpability incurred by agents of the US government for violating the statute, granting them immunity.
While this most recent report submitted to the BWC by the United States does mention that the original law was indeed amended by the USA PATRIOT Act, The U.S. has once again failed to disclose the revolutionary nature of this amendment, and is instead persisting in reporting the text of the older statute without coming clean about the implications or even the wording of the amended version. The critical amendment to 175 literally removes U.S. agents from liability for violating legal prohibitions for possessing and transporting biological weapons. The implications are serious and deserve careful scrutiny.
Questions have also been raised as to whether or not the U.S. ever reported this legislative landmine on the CBM (“Confidence Building Measures”) Form E’s. The CBM’s mandate that state parties report the status of their labs, research projects and other matters of concern to the BWC. The form E mandates the disclosure of new legislation relevant to biological weapons and is considered to be politically binding.
817 was passed along with the rest of the USA PATRIOT Act in 2001. What is publicly available for this time period reveals that the U.S. reported that there was nothing new to declare for both 2001 and 2002. This is revealed at the following link, on page 97. (http://www.unog.ch/80256EDD006B8954/(httpAssets)/41BF3B57E2CB6ED7C12572DD00361BA4/$file/CBM_Submissions_by_Form.pdf).
United States Ambassador Laura Kennedy and the CBM unit of the U.S. State Department have been repeatedly contacted with questions as to whether the U.S. ever disclosed Section 817 to the other parties to the Convention. No response has been forthcoming. A United States delegate to the Seventh Review Conference, Chris Park, recently offered assurances that the requests for information about CBM Form E had been received and were being researched. He also admitted that “there may have been an oversight.”
Here is the complete text of Section 817 of the USA PATRIOT Act, with the questionable subsection underlined:
USA PATRIOT ACT OF 2001
SEC. 817 EXPANSION OF THE BIOLOGICAL WEAPONS STATUTE
Chapter 10 of title 18, United States Code, is amended–
(1) in section 175–
(A) in subsection (b)–
(i) by striking “does not include” and inserting “includes”;
(ii) by inserting “other than” after “system for” and
(iii) by inserting “bona fide research” after “protective”;
(B) by redesignating subsection (b) as subsection (c); and
(C) by inserting after subsection (a) the following:
(b) ADDITIONAL OFFENSE- Whoever knowingly possesses any biological agent, toxin, or delivery system 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, shall be fined under this title, imprisoned not more than 10 years, or both. In this subsection, the terms “biological agent” and “toxin” do not encompass any biological agent or toxin that is in its naturally occurring environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source.;
(2) by inserting after section 175a the following:
SEC. 175b. POSSESSION BY RESTRICTED PERSONS.
(a) No restricted person described in subsection
(b) shall ship or transport interstate or foreign commerce, or possess in or affecting 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 select agent in subsection
(j) of section 72.6 of title 42, Code of Federal Regulations, pursuant to section 511(d)(l) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132), and is not exempted under subsection
(h) of such section 72.6, or appendix A of part 72 of the Code of Regulations.
(b) In this section:
(1) The term “select agent” does not include any such biological agent or toxin that is in its naturally-occurring environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source.
(2) The term “restricted person” means an individual who–
(A) is under indictment for a crime punishable by imprisonment for a term exceeding 1 year;
(B) has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year;
(C) is a fugitive from justice;
(D) is an unlawful user of any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(E) is an alien illegally or unlawfully in the United States;
(F) has been adjudicated as a mental defective or has been committed to any mental institution;
(G) is an alien (other than an alien lawfully admitted for permanent residence) who is a national of a country as to which the Secretary of State, pursuant to section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of chapter 1 of part M of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or section 40(d) of chapter 3 of the Arms Export Control Act (22 U.S.C. 2780(d)), has made a determination (that remains in effect) that such country has repeatedly provided support for acts of international terrorism; or
(H) has been discharged from the Armed Services of the United States under dishonorable conditions.
(3) The term “alien” has the same meaning as in section 1010(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3)).
(4) The term “lawfully admitted for permanent residence” has the same meaning as in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)).
(c) 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. ; and
(3) in the chapter analysis, by inserting after the item relating to section 175a the following:
175b. Possession by restricted persons.
Concerns as to the authenticity of United States’ statements as to compliance with this treaty were magnified recently when Department of Homeland Security representative Daniel Gerstein chose to deny the existence of a military base in California, Sierra Army Depot. Gerstein responded to a question about reports of biological weapons being stockpiled at Sierra Army Depot with a blanket denial.
“I don’t believe that base exists,” stated Gerstein during a side event hosted by the United States during the first week of the Seventh Review Conference.
Sierra Army Depot (www.sierra.army.mil) is located in Herlong, California and formerly functioned as a stockpile for nuclear weapons. Reports have come in from civilian contractors who have visited the base that the nuclear weapons have been dismantled and that troops stationed at the base are now guarding big vats of liquid.
For those keeping watch on the United States and potential deployment, Gerstein offered this unexpected tidbit: He expects a pandemic before the end of 2013.
The BWC prohibits the development, production and stockpiling of bacteriological and toxin weapons and was signed by the United States in 1972. In its present form, the BWC has no means to verify the compliance of states with the treaty. In 2001, a verification protocol was on the table and was derailed by the delegation from the United States.
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Janet Phelan is an investigative journalist whose articles have appeared in the Los Angeles Times, The San Bernardino County Sentinel, The Santa Monica Daily Press, The Long Beach Press Telegram, Oui Magazine and other regional and national publications. Janet specializes in issues pertaining to legal corruption and addresses the heated subject of adult conservatorship, revealing shocking information about the relationships between courts and shady financial consultants. She also covers issues relating to international bioweapons treaties. Her poetry has been published in Gambit, Libera, Applezaba Review, Nausea One and other magazines. Her first book, The Hitler Poems, was published in 2005. She currently resides abroad. You may browse through her articles (and poetry) at janetphelan.com