Responding to Bioterrorism: An Analysis of Titles I and II of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002

Washington University Law Review Volume 83 | Issue 1 January 2005 Responding to Bioterrorism: An Analysis of Titles I and II of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 Ryan R. Kemper Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Health Law and Policy Commons, and the National Security Law Commons Recommended Citation Ryan R. Kemper, Responding to Bioterrorism: An Analysis of Titles I and II of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, 83 Wash. U. L. Q. 385 (2005). Available at: https://openscholarship.wustl.edu/law_lawreview/vol83/iss1/6 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact . RESPONDING TO BIOTERRORISM: AN ANALYSIS OF TITLES I AND II OF THE PUBLIC HEALTH SECURITY AND BIOTERRORISM PREPAREDNESS AND RESPONSE ACT OF 2002 I. INTRODUCTION The anthrax attacks of 2001 showed Americans that our government was ill-prepared to handle the challenges associated with preparing for and responding to a major act of bioterrorism. The locus of some of those attacks—congressional office buildings in Washington, D.C.—also made lawmakers keenly aware of these inadequacies.1 Thus, introduced in the immediate wake of the attacks and signed into law six short months later, the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 promised to be a major tool in the federal government’s fight against bioterrorism.2 However, like many bills passed in the wake of September 11th, the major provisions of the Bioterrorism Preparedness and Response Act are in need of critical analysis.3 This Note seeks to review Title I and Title II of the Act as they address federal preparedness and response capabilities. Part II of this Note provides an overview of the problems associated with bioterrorism by first focusing on the past and present threats from a bioterrorism attack and then turning to the state of the federal government response capabilities prior to the anthrax events of 2001. In doing so, it brings to light the structural and bureaucratic obstacles the federal government faced in trying to respond to the anthrax attacks and provides 1. Robert Pear, House Passes Measure Tightening Toxin Controls, N.Y. TIMES, Oct. 26, 2001, at B9. 2. See Committee News Release, The Committee on Energy and Commerce, Tauzin Hails Conference Agreement on Landmark Bioterrorism Bill (May 21, 2002), available at http://energycommerce.house.gov/107/News/05212002_575print.htm. 3. For examples of post-September 11, 2001 congressional action, see Terrorism Risk Insurance Act of 2002, Pub. L. No. 107-297, 116 Stat. 2322 (2002); Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002); Maritime Transportation Security Act of 2002, Pub. L. No. 107-295, 116 Stat. 2064 (2002); Terrorist Bombings Convention Implementation Act of 2002, Pub. L. No. 107197, 116 Stat. 721 (2002); Mychal Judge Police and Fire Chaplains Public Safety Officers’ Benefit Act of 2002, Pub. L. No. 107-196, 116 Stat. 719 (2002); Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, 116 Stat. 594 (2002); Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. No. 107-173, 116 Stat. 543 (2002); Victims of Terrorism Tax Relief Act of 2001, Pub. L. No. 107-134, 115 Stat. 2427 (2002); USA PATRIOT ACT of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001); Air Transportation Safety and System Stabilization Act, Pub. L. No. 107-42, 115 Stat. 230 (2001). 385 Washington University Open Scholarship p385 Ryan book pages.doc 9/2/2005 386 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 83:385 a glimpse of the political climate which resulted in the passage of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002. Part III analyzes the provisions of the Act aimed at addressing the major problems in coordinating the federal response to bioterrorism, namely, the lack of statutory authority addressing the bioterrorism threat, fragmentation in agency responsibilities, inadequacy in the federal response infrastructure, and the lack of restrictions on the possession and use of dangerous pathogens. Part IV then briefly proposes some additional changes to the federal government’s response structure that are aimed at addressing problems not fully considered by the Act. Finally, Part V concludes that the Act is an encouraging first step in the federal government’s fight against bioterrorism, but many coordination and structural problems must be addressed in order to fully prepare against future threats. II. BACKGROUND/OVERVIEW A. The Problem: Bioterrorism 1. Historical Perspective The use of biological agents as a means to invoke fear and inflict destruction dates back to at least 1346 when soldiers loaded victims of bubonic plague into catapults to launch over city walls.4 By World War I, after the establishment of the germ theory, the German Army utilized biological agents in an attempt to infect Allied horses and troops.5 By the 1940s and the outbreak of World War II, the United States, Japan, and the Soviet Union all counted biological agents as major parts of their arsenal of offensive weapons.6 While the U.S. military developed major offensive biological-weapon programs after World War II,7 little attention was paid to the threat of bioterrorism at home until the 1980s and then was not taken seriously until 4. Robert E. Armstrong & Jerry B. Warner, Biology in the Battlefield, DEFENSE HORIZONS, Apr. 2003, at 1. These actions were taken by Tartar soldiers in the besieged Black Sea Port of Kaffa and some medical historians believe that this act was responsible for the Black Death (bubonic plague) that ravaged Europe in the 14th century. Id. 5. Id. This German operation may also be one of first uses of biological weapons against domestic U.S. interests as the program was carried out by German agents in the U.S. who tried (unsuccessfully) to infect the horses before they were shipped to Europe. Id. 6. Id. 7. American Gulf War Veterans Association, History of Biological Warfare, at http://www.gulfwarvets.com/biowar.htm (last visited Jan. 31, 2005). https://openscholarship.wustl.edu/law_lawreview/vol83/iss1/6 p385 Ryan book pages.doc 9/2/2005 2005] RESPONDING TO BIOTERRORISM 387 the Japanese Aum Shinrikyo cult failed ten times in the early 1990s to release anthrax and botulinum toxin in central Tokyo.8 After these events and the tragic circumstances of the Oklahoma City bombing in 1995, federal officials finally began to consider the possibility of a bioterrorism attack on U.S. soil.9 2. The Anthrax Attacks of 2001 In early September of 2001, the General Accoun (...truncated)