Canaries in cages: responding to chemical/biological incidents.

Consider this scenario. Holiday sales have attracted large crowds to the sprawling suburban mall. Suddenly, as shoppers browse or hurry through the mall, a small bomb explodes in the food court, instantly killing 15 people and severely injuring more than a dozen other men, women, and children.

When the first mall security personnel arrive at the scene, they experience tightness in the chest and difficulty breathing. Dizziness and nausea ensue, and the officers rapidly begin to lose muscular control of their bodies.

The explosive device exposes responding police, fire, and medical personnel to lethal concentrations of a colorless and odorless vapor. Within minutes, more than 50 additional victims are overcome by the fumes lingering in the air. In total, nearly 100 people die in this attack.

Later that night, a major television news organization receives an anonymous telephone call from a man who states that the bomb was a chemical weapon deployed by a known radical organization. Claiming that the incident serves as a warning, he says that similar chemical weapons containing nerve agents have been hidden in populated areas throughout the United States and will be detonated remotely if the U.S. Government does not respond to the group's demands.

Is such a scenario plausible? More than 10 years ago, two foreign affairs specialists speculated that the most dangerous terrorist threat to the United States was not from the use of a nuclear device but from chemical and/or biological warfare.(1) Given the proliferation of the technology and the expanded number of countries capable of manufacturing such weapons worldwide, the specialists' warning rings even more true today.(2)

However, the threat now extends beyond traditional state-sponsored terrorist organizations. The nerve agent attack on March 20, 1995, in the Tokyo, Japan, subway system verifies this threat, and the 12 deaths and 5,500 injured Japanese citizens illustrate the grave danger that chemical and biological weapons pose.

No known domestic or international terrorist elements have signaled a change in tactics from traditional forms of terrorism, such as bombings and kidnappings, to the use of chemical and/or biological (C/B) weapons. Yet, the gravity of the potential use of such weapons, coupled with the capability demonstrated by the perpetrators of the Tokyo subway attack, requires that American law enforcement agencies be prepared for such incidents. This article describes the threat posed by C/B weapons; the response required by local, state, and federal agencies to C/B incidents; and the statutory basis for investigating and prosecuting crimes involving these weapons.

THE THREAT

Initially developed to serve on the battlefield, chemical and biological weapons recently have been incorporated into the arsenals of certain criminal and terrorist organizations. Traditionally, a primary law enforcement concern was the procurement (by theft, purchase, or otherwise) of a stockpiled military C/B weapon by someone with criminal intent. However, the series of seven chemical weapon attacks that occurred in Japan between March 5, 1995, and July 4, 1995, clearly demonstrated the danger associated with the spread of C/B weapon technology.

Today, the traditional criminal motivated by monetary gain, or a psychologically unstable yet technically competent individual, could be capable of manufacturing such weapons, whereas in the past, such individuals had to acquire ready-made weapons. Of special concern should be those well-organized and dedicated groups - especially radical domestic and foreign organizations - that foster secrecy, possess ample financial resources, recruit competently trained individuals, and incorporate doomsday or other drastic beliefs.

Both the Japanese and American news media reported widely that the Japanese incidents were perpetrated to ensure that the predictions of a religious cult leader would come true. The chemical weapon attacks allegedly served as an omen for greater disasters, which the Japanese religious cult Aum Shinri Kyo hoped eventually would ignite a world war.(3)

For fanatical groups and individuals, the attraction of C/B weapons lies in their relative ease and economy of production, as compared to other methods of mass destruction. Also, the legitimate civil uses for C/B components (known as precursors) and related technology limit their control and make these substances relatively easy to acquire. This accessibility heightens the threat of C/B weapons being used.

To date, there have been no serious criminal C/B incidents in the United States; however, warning signs have been detected. For example, in 1994, the FBI arrested two individuals who reportedly belonged to an antigovernment, tax protest group in northern Minnesota for possession of a biological weapon. During the trial in St. Paul, the evidence indicated that the subjects had discussed using the lethal toxin Ricin, the substance they were convicted of possessing illegally, to kill certain public officials.

A chemical or biological incident conceivably could take many forms. It could involve the use of military C/B weapons, or an individual or group might attempt to threaten the public by sabotaging an existing stockpile of hazardous materials used for civilian purposes.

In general, the definition of a C/B incident includes any event that might cause mass casualties by the release or use of a hazardous material. This includes:

1) The manufacture or possession of a C/B weapon

2) The dispersal of a C/B agent among the civilian population. herds of livestock, or agricultural crops

3) The contamination of a municipal water or public food supply with a C/B agent

4) The sabotage of a hazardous chemical production or storage facility

5) The destruction or hijacking of a tractor-trailer or railroad tanker containing hazardous chemicals, or

6) The threat to accomplish one of the above.

THE WEAPONS

It is particularly difficult to define precisely what constitutes a C/B weapon because of the extensive legitimate civil uses for the raw materials used to produce them. From a law enforcement standpoint, the central factor in such a definition is the issue of intent. The existence of criminal intent - planning to commit a harmful act using such substances - differentiates peaceful, legitimate manufacturing and research efforts from the production of C/B agents for criminal purposes. Given that distinction, there are three basic types of C/B warfare agents - chemical agents, infectious agents, and toxins.

Chemical Agents

Chemical agents are compounds whose properties produce lethal or damaging effects in people, animals, plants, or materials. They can exist as solids, liquids, or gases and usually are classified by their effects as nerve, blood, choking, or blister agents. Nerve agents, such as tabun and satin, and blood agents, such as hydrogen cyanide and cyanogen chloride, have particularly lethal effects and can cause death within minutes.

Infectious Agents

Infectious agents that produce illnesses in people are used to create biological weapons. These agents can include numerous bacteria, viruses, or fungi previously known to science, as well as new genetically engineered organisms. The infectious substances in biological weapons can kill or incapacitate large numbers of people. They generally require incubation periods of a few days following exposure before illness develops. Especially lethal diseases include anthrax and the plague.

Toxins

Toxins, unlike infectious agents, cannot reproduce, even though living microorganisms produce them. These poisonous substances require no incubation period, and some can cause incapacitation or death within minutes or hours.(4) Examples of deadly toxins used in biological weapons include botulinum toxins and ricin.

THE DELIVERY

On their own, poisonous agents do not constitute a weapon. Their incapacitating results only take effect upon dispersal. To be used as weapons, they must be combined with a method of delivery, traditionally found in explosives, projectiles, or aerosol dispensers. Potential delivery systems range from the type of complex systems used in military bombs, mortars. missiles, or rockets to the relatively simple delivery methods, such as was used in the March 20, 1995. nerve agent attack in Tokyo.

In this incident, a small parcel containing several vials of chemicals was wrapped in newspaper and placed on the floor of a subway car. According to witnesses, after crushing the package with his hands or feet, the assailant calmly exited the subway car at the next stop. As the fumes generated by the combined chemicals produced the deadly nerve agent sarin, passengers immediately experienced the effects. As noted, 12 people died in the attack, and 5.500 were injured before Japanese authorities could evacuate and decontaminate the subway.

The criminals responsible for the chemical agent attacks in Japan have experimented with a variety of delivery methods. On May 5, 1995, a paper sack holding several condoms was discovered on fire in a subway station restroom. The condoms reportedly contained a chemical precursor necessary to produce the lethal blood agent hydrogen cyanide. Fortunately, a second bag containing the other chemical precursor had not ignited, thus preventing the lethal chemical reaction.(5)

Two months later, two additional devices also designed to produce hydrogen cyanide were discovered in public restrooms at a Tokyo subway station before the deadly gas had been released. A major news organization reported that perpetrators had equipped both devices with timing mechanisms designed to remotely release and mix the chemicals.(6)

THE RESPONSE

Televised news accounts showed Japanese police officers in protective C/B suits and masks carrying canaries in cages for rapid detection of the presence of chemical agents. Those reports dramatically illustrate the uniquely dangerous challenge facing public safety agencies that must respond to such incidents.

Major American cities must consider C/B incident contingency plans that incorporate a variety of emergency services capabilities, such as evacuation, medical treatment, containment, decontamination, and criminal investigation and prosecution. These plans should incorporate resources from a variety of agencies, including police, fire, medical, and other emergency services providers assigned to respond to incidents involving mass casualties and/or contaminated environments.

Local and State

Local law enforcement officers probably will be the first responders to any chemical or biological incident. As such, they are responsible for verifying the threat, evacuating affected areas, and attempting to prevent detonation of the C/B weapon, if possible.

If detonation occurs, local authorities must cope with the immediate results of the incident, known as consequence management. This includes saving lives, providing medical treatment to the injured, housing and feeding evacuated citizens, and decontaminating affected areas. Local and state authorities, however, often do not possess expertise in dealing with C/B weapons, which originally were developed by and for the military. Therefore, additional assistance might be needed.

Federal

To augment local and state resources in addressing a chemical or biological incident, the FBI has been designated the lead agency for coordinating the federal response. As such, it has developed the Chemical/Biological Incident Contingency Plan.

The plan marshals the appropriate federal technical, scientific, and medical operational support to bolster the FBI's investigative and crisis management abilities. Through this plan, federal agencies provide local authorities with coordinated operational support. This support includes advice regarding technical issues, as well as operational deployment of resources and personnel to the scene.

To activate the federal plan, local police should call the nearest FBI field office, which in turn will coordinate any federal response with FBI headquarters. The FBI's four-step contingency plan incorporates a graduated response to C/B incidents. The four steps are threat assessment, provision of technical advice to the incident manager, deployment of technical personnel and resources to the scene, and marshalling of consequence management resources.

The contingency plan brings together specialized resources drawn primarily from the Department of Defense (DOD), the Department of Health and Human Services (HHS), and the Environmental Protection Agency (EPA). The DOD components provide technical expertise in military weapons systems, including conventional explosives that might be associated with a C/B weapon. DOD also possesses decontamination, sampling, and threat profiling capabilities. HHS and EPA components can monitor, test, and analyze the threat and also provide other specialized medical and laboratory support.

In addition, these agencies might have consequence management responsibilities in the aftermath of a C/B incident. These duties involve taking steps to mitigate the extent of the injuries and damage inflicted. Even though state and local agencies hold the primary responsibility to provide such services, in a potentially catastrophic incident, numerous federal agencies would be available to assist. In addition to those already mentioned, the Federal Emergency Management Agency, the Department of Transportation, and the Department of Agriculture likely would help, as well as others, depending on the facts of the incident.

The various steps of the plan can be implemented gradually or simultaneously, as dictated by the circumstances surrounding the incident. For example, in case of a credible threat, some emergency arrangements, such as alerting hospital staffs and preparing for evacuation, might be activated, even if the C/B agent has not been released. As a result, both law enforcement and related emergency management actions would combine to handle a credible C/B threat.

The FBI's plan does not address noncriminal hazardous materials cases or the presence of suspicious substances without clear terrorist or other significant criminal implications. It focuses on the law enforcement aspects of a C/B incident, while concurrently addressing the integration of law enforcement and consequence management actions. It is designed to improve the Federal Government's overall ability to augment and effectively assist municipal, county, and state entities in responding to and mitigating the effects of a criminal chemical or biological incident.

THE LEGISLATION

Of course, the effectiveness of any contingency plan hinges on preventing potential attacks before C/B agents can be disseminated. For this reason, an adequate statutory basis for collecting intelligence, seizing evidence, and prosecuting culpable individuals must exist. In terms of weapons of mass destruction, nuclear weapons traditionally have received most of the public's attention, which has resulted in adequate criminal legislation in the nuclear field.(7)

While no similar comprehensive federal criminal legislation has been developed for chemical weapons, pertinent legislation does exist to address biological weapons. A U.S. senator introduced the "Biological Weapons Anti-Terrorism Act of 1989" in May of that year. In justifying the legislation, he stated, "Biological weapons are becoming increasingly easy to make and offer terrorists a simple way to inflict mass destruction. With the recent advances in genetic engineering, this country can no longer afford this potentially disastrous loophole in its criminal code."(8)

The act took effect in May 1990(9) and makes it illegal to manufacture or possess biological weapons or to assist a foreign country in the development of such a weapon. Additionally, the statute authorizes the U.S. Attorney General to seize and destroy biological weapons. It also contains extraterritorial provisions.(10)

In the absence of other specific legislation, law enforcement agencies still have ways to pursue criminals who brandish these deadly weapons. When C/B weapons are associated with the criminal intent to violate other criminal statutes, a legal method to seize evidence and make arrests exists, as provided for under various state or federal criminal codes. Depending on the circumstances, the FBI might address C/B incidents by applying federal environmental crimes,(11) tampering with consumer products,(12) extortion,(13) or conspiracy(14) laws. State law enforcement agencies can apply other charges, including murder, attempted murder, assault, and extortion.

CONCLUSION

If, as claimed by the anonymous caller depicted earlier, additional chemical weapons containing nerve agents actually had been hidden in populated areas throughout the United States, how would U.S. law enforcement respond? In concert with other law enforcement agencies, the FBI would employ the C/B Incident Contingency Plan. The primary goal always is to prevent dispersal of the nerve agents by proficiently using appropriate intelligence information. Secondary goals include mounting an effective operational response and, thereafter, containing and minimizing the consequences of an incident.

Above all else, chemical and biological incidents require efficient public communication, rapid access to technical and scientific information, and a coordinated effort on the part of all involved agencies. Only through a coordinated and combined effort can law enforcement agencies across the country provide the best possible protection for the citizens they serve.

With a little luck and a lot of hard investigative work, perhaps no U.S. law enforcement agency will ever have to respond to a lethal nerve agent attack similar to the one described in the opening scenario. With some planning, no agency need be caught unprepared if it does.

Endnotes

1 Neil Livingstone and Joseph Douglass, Jr., CBW: The Poor Man's Atomic Bomb (Washington, DC: Institute for Foreign Policy Analysis, Inc., 1984).

2 "Chemical Arms: Navy Report Asserts Many Nations Seek or Have Poison Gas," New York Times, March 10, 1991, 1.

3 "Engineer of Doom: Cult Leader Shoko Asahara Didn't Just Forecast Armageddon, He Planned It," Time, June 12, 1995, 57.

4 Congress, Senate, Committee on Governmental Affairs, Hearing by the Senate Judiciary Committee Regarding Biological Anti-Terrorism Act of 1989, 101st Cong., 2d sess., May 17, 1989.

5 "Aura Reportedly Planted Cyanide Gas Device at Shinjuku Station," The Daily Yomiuri, June 14, 1995, 1.

6 "More Gas Bombs Found in Tokyo Subways," Cable News Network, July 5, 1995.

7 The Atomic Energy Act of 1954, as amended, 42 U.S.C. [section] 2011 (1954); and Prohibited Transactions Involving Nuclear Weapons, as amended, 18 U.S.C. [section] 831 (1948).

8 U.S. Senator Kohl, Press Release, May 16, 1989.

9 18 U.S.C. [section] 175 (1990).

10 Extraterritorial provisions of certain federal statutes provide the FBI with the legal jurisdiction to gather evidence and seek U.S. prosecution of defendants for certain actions committed against U.S. citizens overseas.

11 See especially, the Toxic Substances Control Act, 15 U.S.C. [section] 2614 (1976); and the Clean Water Act, as amended, 33 U.S.C. [section] 1319 (1948).

12 Tampering With Consumer Products, 18 U.S.C. [section] 1365 (1983).

13 Mailing Threatening Communications, as amended, 18 U.S.C. [section] 876 (1948).

14 Conspiracy to Commit Offense or to Defraud United States, 18 U.S.C. [section] 371 (1948).

Special Agent Mefford, currently assigned to the San Francisco Division of the FBI, formerly worked in the counterterrorism section of FBI Headquarters in Washington, DC.