Disarmament on top of the world
Posted: March 10, 2014 Filed under: Biological | Tags: Asia, BTWC, Disarmament, Nepal, Ratification, Universalisation, UNODA 3 CommentsGiven that the Chemical Weapons Convention (CWC) has already attracted 190 states parties, the Biological and Toxin Weapons Convention (BTWC) has become something of a laggard. Not just in terms of numbers, but also regarding the time it has taken to secure the 170 ratifications or accessions. It entered into force in 1975, or 22 years before the CWC became effective.
Over the past decade and a half parties to the BTWC have stepped up their efforts to secure more ratifications and accessions. Unlike the CWC, the BTWC does not have an international implementation organisation that can take charge of universalisation initiatives or assist members with the national implementation of their treaty obligations. In 2006, the 6th BTWC Review Conference decided to establish a small Implementation Support Unit (ISU), which is embedded in the Geneva branch of the UN Office for Disarmament Affairs (UNODA), to coordinate and facilitate a variety of activities in support of treaty universalisation and implementation. Since then there has been a notable increase in both the number and effectiveness of events to turn the BTWC into a truly global prohibition on biological and toxin weapons. Several states are now on the verge of becoming a party, and chances are that some will join the convention in the course of 2014.
One such state is Nepal, a small kingdom that embraces the Himalayas. Despite having signed the convention on 10 April 1972, it is besides Myanmar the only continental Asian state not to be a party to the BTWC. The ISU and UNODA’s regional office in Kathmandu, the UN Regional Centre for Peace and Disarmament in Asia and the Pacific (UNRCPD), convened a meeting on 20–21 February to promote early ratification and discuss assistance modalities for the development of national implementation legislation as required under Article IV of the convention. The European Union funded the event through its Action Plan in support of the BTWC.
A dynamic meeting
Twelve ministries and government agencies participated in the workshop. They included foreign affairs, defence, justice, the interior, science and technology, and different law enforcement agencies, among others. Ms Ambika Devi Luitel, Officiating Foreign Secretary of Nepal, Ambassador of the European Union to Nepal Rensje Teerink and UNRCPD Director Sharon Riggle welcomed the participants and outlined the meeting goals. Mrs Jacklin Georges of the ISU laid out the types of decisions she expected to come out of the workshop in order to be able to determine the types of legislative assistance Nepal might require and an assistance calendar before the EU Action Plan expires at the end of 2014. I had the pleasure of giving a general background briefing on the BTWC and its history and an overview of the confidence-building measures parties to the BTWC are supposed to be engaged in. My colleague from VERTIC, Ms Yasemin Balci, detailed the legislative requirements under the BTWC and other legal obligations that may result from being a party to the convention and UN Security Council Resolution 1540. She also described VERTIC’s legislative assistance programme and the ways in which the organisation collaborates with the ISU.
As is usual in such workshops, most participants are exposed for the first time to the details of the BTWC, the reasons why their country should become a state party, and the responsibilities it will assume after ratification (or accession). Fortunately, the meeting itself built on an ISU-organised regional seminar on universalisation held in Kuala Lumpur, Malaysia on 2–4 September 2013. Two representatives from the Nepalese Defence Ministry attended, who at the Kathmandu workshop revealed themselves as true social entrepreneurs. More than any foreigner could have done, they were able to answer the specific questions any Nepalese official had and overcome any lingering (bureaucratic) hesitation. At the same time, Sharon Riggle, given her excellent understanding of Nepalese consultation culture, recommended a couple of times that the foreign experts withdraw from the deliberations. The (to a foreigner such as myself) animated discussions in Nepali invariably led to concrete outcomes, that enabled the ISU to come away with a concrete time line for future activities.
I left the two days of meetings with the impression that Nepal is keen on ratifying the BTWC soon. In the end, the only remaining obstacle is a fully functioning parliament. The Nepalese participants, however, felt confident about the future of their political system, and desired to proceed with the legislative preparations so as to be ready on the day their country finally becomes a full party to the BTWC.
[Cross-posted from The Trench]
Debunking the myth of Nazi mosquito-borne biological weapons
Posted: March 4, 2014 Filed under: Biological | Tags: Armament, Biological warfare, Nazi Germany, World War 2 1 CommentStarting at the end of January, several press items reported on an academic article published in the December edition of the quarterly magazine Endeavour. Based on documents from the Dachau concentration camp, Dr Klaus Reinhardt, a biologist at the University of Tübingen uncovered that Nazi scientists wanted to use mosquitos as insect vector for the delivery of malaria plasmodium protozoans. According to the article abstract:
In January 1942, Heinrich Himmler, head of the Schutzstaffel (SS) and police in Nazi Germany, ordered the creation of an entomological institute to study the physiology and control of insects that inflict harm to humans. Founded in the grounds of the concentration camp at Dachau, it has been the focus of previous research, notably into the question of whether it was involved in biological warfare research. This article examines research protocols by the appointed leader Eduard May, presented here for the first time, which confirm the existence of an offensive biological warfare research programme in Nazi Germany.
In 1999, while at SIPRI, I oversaw the publication of a volume in the Chemical & Biological Warfare Studies series edited by Erhard Geissler and John Ellis van Courtland Moon on Biological and Toxin Weapons: Research, Development and Use from the Middle Ages to 1945. Geissler, now a retired professor in molecular biology and genetics, wrote the chapter on Germany’s biological warfare programmes before and during World War 2. He basically debunked the myth that the SS was conducting a secret offensive biological warfare programme against Hitler’s explicit orders not to investigate such weapons.
Reinhardt claims to have recently uncovered fresh documents from Dachau and suggests that the earlier assessments of Germany’s offensive BW activities are wrong. Being familiar with Geissler’s investigations — particularly with the 900-page mastodont, emphatically entitled Biologische Waffen – nicht in Hitlers Arsenalen — and other historical research on the origins of offensive biological warfare programmes on the eve of and during World War 2, I was mildly sceptical of the new claims. While the possibility of finding new archival material always exists, contradicting a central conclusion of extensive historical research is quite a different matter. An article in National Geographic summarised Reinhardt’s findings, but also noted that they are controversial among researchers. His conclusions were therefore not as absolute as some press items were suggesting, I therefore assumed.
Yesterday, however, Erhard Geissler posted a blog commentary, calling the findings ‘disinformation’ :
Despite the thrilling headline Reinhardt in his article does not provide any new material regarding the dual-use activities performed in the Entomological Institute of the Waffen-SS beyond that what was already published. The low-scale experiments performed by Eduard May in September 1944 on the survival of food-deprived mosquitoes, can hardly assessed as confirmation of “the existence of an offensive biological warfare research programme in Nazi Germany”. Besides that, the main body of Reinhardts paper including its concluding paragraph does not pick up the alleged BW preparations but deals with the “enigmatic figure” of its director, Eduard May.
Geissler concludes:
Up to today there is no evidence of offensive biological warfare research in Germany after the unsuccessful attempts of German biosabotage in WWI. It is a pitty that the misleading heading of Reinhardt ‘s article similar to other disinformation campaigns are favored by some media’s apparent craving for a breaking story that often supersedes thorough investigation.
This is pretty categorical debunking of research findings. To be continued?
[Cross-posted from The Trench]
For the record: Israeli Chemical/Biological Weapons
Posted: September 16, 2013 Filed under: Biological, Chemical 3 CommentsFor a better understanding of the regional context of the proposed dismantling of the Syrian CWs, it may be interesting to have a look at the article published in 2001 by Avner Cohen, ‘Israel and Chemical/Biological Weapons: History, Deterrence, and Arms Control’ The Nonproliferation Review, Vol. 8, No. 3 (Fall-Winter 2001), available here. Updated information on Israeli CW capabilities is also found on NTI’s website.
Syria and Biological Weapons? And Cluster Munitions?
Posted: September 5, 2013 Filed under: Biological, Conventional | Tags: biological weapons, Cluster munitions, Human Rights Watch, Syria 10 CommentsSYRIA AND BIOLOGICAL WEAPONS?
Joby Warrick has a story in today’s Washington Post about emerging concerns that Syria has, and might use, biological weapons. The article states:
Syria’s bioweapons program, which U.S. officials believe has been largely dormant since the 1980s, is likely to possess the key ingredients for a weapon, including a collection of lethal bacteria and viruses as well as the modern equipment needed to covert them into deadly powders and aerosols, according to U.S. and Middle Eastern officials and weapons experts.
This latent capability has begun to worry some of Syria’s neighbors, especially after allegations that the regime of President Bashar al-Assad used internationally banned chemical weapons against civilians in an Aug. 21 attack.
Top intelligence officials in two Middle East countries said they have examined the potential for bioweapons use by Syria, perhaps as retaliation for Western military strikes on Damascus. Although dwarfed by the country’s larger and better-known chemical weapons program, Syria’s bioweapons capability could offer the Assad regime a way to retaliate because the weapons are designed to spread easily and leave few clues about their origins, the officials said.
The story is definitely worth a read, but I am not going to guess what people might read into it.
Very briefly, as for the applicable treaty law on biological weapons, Syria is a party to the Geneva Protocol of 1925 but is not a party to the Biological Weapons Convention. As with chemical weapons, most international lawyers hold that customary international law bans the use of biological weapons in any form of armed conflict. As a member of the UN, Syria is subject to relevant Security Council decisions on biological weapons, such as Resolution 1540 on preventing non-state actors from obtaining WMD material.
SYRIA AND CLUSTER MUNITIONS?
Rick Gladstone in the New York Times reports on allegations that the Syrian military has used cluster munitions:
In the shadow of a confrontation over whether Syria’s government had attacked civilians with internationally banned chemical munitions, a rights group reported Wednesday that Syrian armed forces had repeatedly used cluster bombs, another widely prohibited weapon, in the country’s civil war.
The group, Human Rights Watch, said in a report on cluster bomb use that it had documented dozens of locations in Syria where cluster bombs had been fired over the past year.
Cluster bombs are munitions that may be fired from artillery or rocket systems or dropped from aircraft. They are designed to explode in the air over their target and disperse hundreds of tiny bomblets over an area the size of a football field. Each bomblet detonates on impact, spraying shrapnel in all directions and killing, maiming and destroying indiscriminately.
The Human Rights Watch report mentioned can be found here. Syria is not a state party to the Convention on Cluster Munitions.
It’s Baaack! The Biosecurity Controversy Over “Gain-of-Function” Research on Influenza Viruses Returns
Posted: August 8, 2013 Filed under: Biological | Tags: avian influenza A (H5N1), avian influenza A (H7N9), biological weapons, Biological Weapons Convention, dual use research of concern, gain-of-function research, influenza 1 CommentOn August 7th, a group of influenza scientists published online a letter in Nature in and Science in which they proposed conducting “gain-of-function” (GOF) research on the avian influenza A (H7N9) virus. GOF research is sometimes discussed as “dual use research of concern,” or DURC. I have posted on Arms Control Law, and published elsewhere, on developments in the biosecurity and public health controversy over GOF research on the highly pathogenic avian influenza A (H5N1) virus by Dutch researchers, led by Ron Fouchier from the Erasmus Medical Center, and American scientists, led by Yoshihiro Kawaoka from the University of Wisconsin-Madison. The announcement of the proposed GOF experiments on the H7N9 virus has brought the controversy back into the spotlight.
To recap, “gain-of-function” research involves scientific experiments that alter pathogens in ways that give them features or functions not presently found in the wild. In the H5N1 GOF research that sparked the worldwide controversy from late 2011 until early 2013, researchers manipulated the H5N1 virus so that it achieved transmissibility between mammals–a capability the virus had not readily demonstrated in nature. Generally speaking, an objective of GOF research on influenza viruses is to provide an earlier understanding of how the viruses might mutate in the wild and cause human pandemics, potentially giving scientists and public health experts more time to develop potential responses, such as alerting surveillance systems and preparing vaccine strategies.
Critics of the H5N1 GOF research worried about a number of problems, including whether (1) biosafety conditions in laboratories would be adequate to prevent accidents that could cause outbreaks, and (2) such experiments could threaten biosecurity by providing states, terrorists, or criminals with “blueprints” for making biological weapons. The controversy led to delayed publication of the H5N1 GOF research results, a voluntary moratorium on GOF research, and the development by the U.S. government of new, stricter rules and oversight processes for GOF research it funds.
Similar to the GOF H5N1 experiments, the proposed H7N9 GOF research includes, among other things, experiments “[t]o assess the pandemic potential of circulating [H7N9] strains and perform transmission studies to identify mutations and gene combinations that confer enhanced transmissibility in mammalian models (such as ferrets and guinea pigs).” Global health concerns about the H7N9 virus arose in spring 2013 when a worrying number of cases of humans infected by contact with birds occurred in China. As of early July, the mortality rate among humans infected with H7N9 was approximately 33%, making the virus a killer pathogen. To date, the H7N9 virus has not demonstrated serious human-to-human transmission, but the fear is that it might mutate and spread more readily in human populations. The proposed GOF experiments on the H7N9 virus are intended to give scientists and public health officials possible insights into how the virus might change into something more fearsome–and, thus, give them more time to prepare.
Critical reactions to the proposed H7N9 GOF research indicated that the biosecurity and public health controversy over GOF experiments has not subsided. A flavor of the criticism can be found in this story from Science:
“The scientific justification presented for doing this work is very flimsy, to put it mildly, and the claims that it will lead to anything useful are lightweight,” says Adel A. F. Mahmoud, an infectious disease specialist at Princeton University and the former president of Merck Vaccines. And the security precautions are “insufficient and amazingly lame,” says molecular biologist Richard Ebright of Rutgers University in Piscataway, New Jersey.
And from this story in The Scientist:
Simon Wain-Hobson, a virologist from the Pasteur Institute in France, was critical of the move. “Since when do scientists try to get manifestos into Nature and Science?” he asked. “If they were going to do the human genome or go after the Higgs boson, I could understand that, but this is extraordinarily focused. They are ramming gain-of-function experiments down our throats against debate, and it’s not scientific.”
. . .
Michael Osterholm, director of the Center for Infectious Disease Research and Policy (CIDRAP) at the University of Minnesota and a vocal critic of last year’s decision to publish the H5N1 research, added that the flu community still has not rigorously weighed the risks and benefits of gain-of-function studies. “I support doing them for basic research purposes, and I have always maintained that Yoshi [Kawaoka] and Ron [Fouchier] could do this work safely,” he said. “But my concern is that publishing their data would allow labs around the world, which won’t adhere to the same safety requirements, to do the same.”Osterholm added that the signatories of today’s letter have overstated the benefits of gain-of-function research, including the potential for developing better vaccines and antiviral drugs, or improving surveillance measures. “We still do H5N1 surveillance in the same way a year later,” he said.
In terms of arms control and non-proliferation, the GOF controversy includes arguments about the BWC’s (ir)relevance to the challenge of balancing public health and biosecurity in scientific research. The BWC review conference in December 2011 occurred when the H5N1 GOF controversy was in full swing, but the BWC states parties did not address it in any serious way , despite much rhetoric about the BWC being a central forum for discussing biosecurity issues beyond the traditional focus on non-proliferation of biological weapons by states. The reticence of BWC states parties to address this controversy connected to a larger governance problem that emerged from the H5N1 GOF research episode–the inadequacy, or lack of, adequate national and international rules and processes to deal effectively with the pros and cons of GOF research.
The scientists proposing the H7N9 GOF research are seeking U.S. government funding, so the proposal will be subject to the heightened U.S. rules and procedures adopted after the H5N1 controversy. The H7N9 GOF experiments, if approved and funded by the U.S. government, will go forward under these rules. How the U.S. government handles these proposals under its new approach will be closely watched by the biosecurity, public health, and scientific communities around the world.
Surveillance Like a Cancer Grows? The Implications of NSA Intelligence Activities on the Non-Proliferation & Arms Control Communities
Posted: July 17, 2013 Filed under: Biological, Chemical, Cyber, Nuclear, Terrorism | Tags: cyberspace, Edward Snowden, NSA, Surveillance, WMD 10 CommentsELECTRONIC SURVEILLANCE AND THE COMMUNITIES INVOLVED IN NON-PROLIFERATION AND ARMS CONTROL
In a comment to Dan Joyner’s post on Lawyers, Guns, and Money, Yousaf Butt raised the need to link the disclosures being made about NSA surveillance to the work of people engaged on non-proliferation and arms control issues. In particular, he cited a July 6, 2013, New York Times article by Eric Lichtblau entitled “In Secret, Court Vastly Broadens Powers of N.S.A.” This article was widely read, as evidenced by The Economist basing a story on it. In the Times article, Lichtblau reported US intelligence officials obtaining “access to an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran’s nuclear program.” Yousaf asked whether this example means anyone discussing nuclear proliferation could be subject to NSA surveillance. Or, more broadly, could electronic communications about WMD proliferation challenges to US national security be subject to NSA collection activities? Yousaf thought such surveillance could create a “chilling effect” that might adversely affect “free discourse” in the non-proliferation area. Dan asked me to share my thoughts on this issue, so here goes . . .
THE NUCLEAR PROLIFERATION CASE CITED IN THE TIMES ARTICLE
Section 702 of FISA
Let me start with the case reported in the Times and cited by Yousaf. Apparently, the e-mail communication that contained the attachment accessed by US intelligence officials was sent and received in the US, so, if accurately reported by the Times, this case does not involve the authority created in the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 that permits the FISA Court to authorize “the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information,” including communications involving US persons (Section 702, Foreign Intelligence Surveillance Act, 50 USC sec. 1881a(a)). Even though this case does not involve this authority, the free speech concerns raised by lawyers, journalists, and human rights activists in Clapper v. Amnesty International (decided on standing grounds, 133 S.Ct. 1138 (2013)) apply to persons engaged in electronic communications with foreign nationals located overseas on issues relating to US national security.
FISA defines “foreign intelligence” to include “information that relates to . . . the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power” (50 USC sec. 1801(e)(1)). As the challenge mounted in Clapper indicates, many communities of interest are concerned about the “chilling effect” of the surveillance authority created by the FISA Amendments Act. The inclusion of WMD proliferation in the definition of foreign intelligence means the non-proliferation and arms control communities have been on notice about this US government power since 2008.
However, Snowden’s disclosures of PRISM (the NSA program operated under Section 702 of FISA) revealed how the US government uses this power. People in communities of interest not previously nervous about Section 702 of FISA might now be concerned about their communications with foreign nationals, and perhaps, as Yousaf’s comment suggests, this includes persons working on non-proliferation and arms control questions. So, as with other interested persons and organizations, the non-proliferation and arms control communities should monitor what happens next with this controversy, including law suits already filed in federal court challenging PRISM.
US Communications, Metadata, and Access to the Content of Communications
However, the case reported in the Times involved an e-mail and its attachment sent and received in the US, meaning that different aspects of FISA applied to this surveillance activity. The Times article is not exactly clear what happened, when it happened, what the FISA court did, and why it did what it did (at least these things are not clear to me from the article). My point is not that the Times article is wrong; my point is that it raises more questions than it answers, and trying to answer some questions proves difficult because of a lack of information. As explained below, these questions require more scrutiny of the Times article’s claim that the FISA court “vastly broadens powers of the N.S.A.” In short, we should not jump to conclusions about the Times article and its implications. In what follows, I try to sort through what the article does contain.
Collecting Internet and E-Mail Metadata
US intelligence officials probably picked up information from collecting and analyzing “metadata” on e-mail traffic that triggered a desire to see the e-mail attachment in question. Part of Snowden’s disclosures included information about the US government’s collection of e-mail and other Internet metadata within the US after 9/11 through 2011, when this aspect of NSA surveillance was apparently terminated. Initially undertaken by the Bush administration outside FISA, the collection and analysis of e-mail and other Internet metadata came within FISA court review and approval in 2004, after which the FISA court reviewed and approved orders for such surveillance periodically until 2011, when the Obama administration stopped this particular metadata surveillance effort.
Application of the “Special Needs” Exception to Collection of Internet and E-Mail Metadata under FISA
According to the Times article, the FISA court determined that such metadata surveillance did not violate the Fourth Amendment and relied, apparently, on the “special needs” exception to the Fourth Amendment’s warrant requirement. Generally, the “special needs” exception allows the government to undertake a search without a Fourth Amendment warrant to gather information unrelated to law enforcement purposes (e.g., drug tests of railway workers; passenger screening at airports). Referring to outside legal experts, the Times article commented that this application of this exception “is significant . . . because it uses a relatively narrow area of the law . . . and applies it much more broadly, in secret, to the wholesale collection of communications” for foreign intelligence purposes, including countering terrorism, WMD proliferation, espionage, and cyber attacks. This alleged expansive use of the “special needs” doctrine by the FISA court forms part of the Times article’s observation that this court is perhaps becoming “almost a parallel Supreme Court” because it regularly assesses “broad constitutional questions” and establishes judicial precedents for foreign intelligence surveillance.
Here is where the questions about the article begin to multiply. For starters, telephony and Internet metadata is not protected by the Fourth Amendment under existing jurisprudence, so, presumably, the FISA court does not need the “special needs” exception to the Fourth Amendment to review and approve collection of metadata. As Orin Kerr commented, if the FISA court “has ruled that all metadata is outside the Fourth Amendment, that’s not a surprise.”
Next, the “special needs” exception has long been associated with the gathering of foreign intelligence by the US government and with FISA itself. As Kris and Wilson put it, “Congress enacted FISA explicitly to serve as a special need not related to ordinary law enforcement: foreign intelligence and counter-intelligence. The courts have upheld FISA under a special-needs theory against multiple constitutional challenges” (David S. Kris and J. Douglas Wilson, National Security Investigations & Prosecutions (2007), sec. 11:12, p. 11-30). So, foreign intelligence activities subject to FISA fall under the “special need” exception for foreign intelligence gathering under existing law and jurisprudence. Again, Kerr commented that, if the FISA court has held that foreign intelligence efforts to locate terrorists fall under the “special needs” exception, then “that’s not noteworthy.” The same applies to foreign intelligence gathering for other serious national security threats, such as WMD proliferation.
These observations suggest that the FISA court is not vastly increasing the powers of the NSA or acting as a “parallel Supreme Court” but is operating within existing jurisprudence and statutory law. So, what’s going on here? I’m not sure based on what the Times article contains. Now, people might be worried about the powers existing jurisprudence and statutory law give the NSA and the FISA court–but the Times article claims something new, different, and secret is happening that does not track case precedents and legislation.
Accessing the E-Mail Attachment Related to Nuclear Proliferation
As noted above, the Times article reported that US intelligence officials went beyond metadata collection and accessed the content of an e-mail communication in the form of an attachment the officials feared “contained a schematic drawing or diagram possibly connected to Iran’s nuclear program.” The Times article is not clear how, and under what authority, the US intelligence officials accessed the content of this e-mail communication. The article states that gaining such access “[i]n the past . . . probably would have required a court warrant because the suspicious e-mail involved American communications.”
Well, if the US government wanted access to the e-mail attachment for foreign intelligence purposes, then FISA requirements for obtaining a FISA court order to undertake such content-based surveillance within the US apply. However, the Times article is not clear whether US intelligence officials obtained a FISA court order to access the content of the e-mail communication in question. Confusingly, the article follows up its statement about the probable need for a “court warrant” with a description of the broadening of the FISA definition of “foreign intelligence” in 2008 to include information related to WMD proliferation–information that is not helpful to understanding whether the US government obtained FISA court approval to access the e-mail attachment in question.
If the government obtained the FISA court’s specific approval for its access to the e-mail attachment, then the government complied with the relevant law–nothing new, then, legally speaking. However, if the FISA court has constructed some “special needs” exception to the FISA requirement to obtain a specific order for electronic surveillance in the US for foreign intelligence purposes, then we might have something new to ponder. But the Times article does not provide enough information to pursue this inquiry in any productive manner. We would have to be able to examine the FISA court decisions mentioned in the article, but those remain secret.
CONCLUSION
OK, so what does all of this mean for communities interested in non-proliferation and arms control that communicate through e-mail and other electronic means with people inside and outside the US? Based on what’s in the Times article, here’s my answer:
- Since the FISA Amendments Act of 2008 added Section 702 to FISA, it has been clear that electronic communications by US persons with foreign nationals could be subject to broad, FISA court-approved surveillance to acquire foreign intelligence through targeting persons reasonably believed to be located outside the US. The Times article does not change what we have known for quite some time on this aspect of FISA.
- The Times article’s reference to the “special needs” exception creates more questions than answers, meaning that, in such a state of affairs, it is best not to rage first and ask legal questions later. We know enough to wonder whether the article is accurately describing what’s actually happened in the FISA court. But, given recent disclosures, we also know enough to worry that we don’t know everything we need to know to assess what’s going on.
- What exactly the FISA court has done in the rulings mentioned in the Times article remains unclear, and the rulings remain secret. For the time being, we don’t know what we don’t know concerning the legal reasoning used by the FISA court.
My intent is not to promote a “don’t worry, be happy” attitude about the implications of NSA surveillance programs disclosed in recent weeks either generally or specifically to work that you might do. Like many people, I worry about the scale of the surveillance the disclosures have revealed and about some legal justifications given for these secret programs. But I am also concerned that the incomplete information we are getting through leaks in dribs and drabs is creating and agitating fears that, like a toxic miasma, government surveillance is permeating everything, everywhere and affecting everybody without meaningful limits or oversight. To prevent actual and imagined surveillance from doing more damage to the body politic, more transparency is required politically and legally.
New US-Russia Cooperative Threat Reduction Agreement
Posted: June 19, 2013 Filed under: Biological, Chemical, Nuclear Leave a commentThe United States and Russia have reached a new agreement on bilateral efforts to dismantle and secure WMD in Russia. This accord replaces the now-expired agreement that supported the long-running Cooperative Threat Reduction Program, otherwise known as the Nunn-Lugar program. On June 17, the White House released a fact sheet on the new agreement, which reads:
On June 14, the United States and the Russian Federation signed a new bilateral framework on threat reduction that reinforces our longstanding partnership on nonproliferation. This new framework builds upon the success of the 1992 Agreement between the United States of America and the Russian Federation Concerning the Safe and Secure Transportation, Storage and Destruction of Weapons and the Prevention of Weapons Proliferation, commonly known as the Nunn-Lugar Cooperative Threat Reduction (CTR) Umbrella Agreement that expires today.
As long-time partners with a mutual interest in promoting nuclear security, the United States and the Russian Federation have successfully partnered on a broad range of activities designed to prevent the spread of weapons of mass destruction (WMD) by securing and eliminating WMD-related materials and technology, and engaging relevant expertise. Joint U.S. and Russian nuclear security activities will be conducted under the Framework Agreement on a Multilateral Nuclear Environmental Programme in the Russian Federation (MNEPR) and a related bilateral Protocol. This new bilateral framework authorizes the United States and the Russian Federation to work in several areas of nonproliferation collaboration, including protecting, controlling, and accounting for nuclear materials.
The signing of the new bilateral framework demonstrates that the United States and the Russian Federation remain committed to nuclear security and other mutual nonproliferation objectives.
Global Security Newswire has two stories on the new agreement from June 17 and June 18, which included the statement that “[w]hat exactly U.S. nonproliferation programs . . . will be able to do in Russia under the new agreement remains unclear[.]”
Chemical incapacitants: an acute case of fragmentation of international law?
Posted: February 11, 2013 Filed under: Biological, Chemical 2 CommentsDavid Fidler raised an important point in discussing the ‘slippery slope ambiguity’ concerning the potential use of novel toxic chemicals for law enforcement purposes and lack of consensus among states to make a prohibition on such a development as comprehensive as possible.
There is a confluence of different types of discussion in the in the debate on incapacitating agents. The licitness of incapacitating agents falls between three specialised areas of law, namely:
Lifting the Moratorium on “Gain-of-Function” Scientific Research on Highly Pathogenic Avian Influenza H5N1
Posted: January 30, 2013 Filed under: Biological 1 CommentToward the end of 2011 and the beginning of 2012, a global health and security controversy erupted about scientific research on highly pathogenic avian influenza H5N1 that, in brief, managed to increase the transmissibility of the H5N1 virus. Scientific, health, and national security experts hotly debated whether conducting and publishing such “gain-of-function” research was appropriate. Part of the security concerns involved fears that this kind of research could provide governments and terrorist groups with blueprints for making biological weapons, and the Biological Weapons Convention (BWC) became part of the discourse about the research controversy and what to do about it.
In response to the controversy and the difficult questions it raised, the international community of influenza researchers agreed to a voluntary moratorium on similar research until the issues had been examined and the benefits of such research were better understood. In January 2013, a group of 40 influenza researchers announced they were resuming their research, arguing the moratorium had served its purpose and that they had a public health responsibility to continue this type of research. More specifically, these scientists asserted that researchers who have approval from their national authorities to conduct such research under appropriate biosafety and biosecurity standards can and should proceed with their work. This action was taken before the U.S. government finalized a new framework for assessing future “gain-of-function” influenza research discussed at a meeting of stakeholders in December 2012.
However, as noted in media reports about this action, it is not clear that the acrimonious debate produced consensus on key questions the controversy raised. Having followed this debate closely since it erupted, it is not clear to me how international consensus could have been produced on these questions without stronger international governance mechanisms. The involvement of the World Health Organization (WHO) has been both controversial (e.g., its widely criticized meeting in February 2012 among stakeholders) and necessary (e.g., in developing non-binding biosafety guidelines for such research, which WHO released in July 2012).
In terms of the BWC, this problem proved awkward because the BWC permits peaceful scientific research, and no one questioned the peaceful motives of scientists conducting “gain-of-function” research on H5N1. The BWC process had discussed “dual use” challenges posed by advances in the biological and life sciences for years, but, when the H5N1 controversy rumbled on at the same time as the BWC review conference in December 2011, the review conference made no particularly useful contribution to the debate. For many experts, this outcome reinforced the view that the BWC is not an effective forum for tackling how the “dual use” problem intersects with the threat of biological weapons proliferation or bioterrorism.
Although many people involved in this debate believe that the debate itself has been productive, identifying any material change in how “gain-of-function” research on H5N1 is handled is difficult. Before the controversy erupted and the moratorium put in place, national governmental authorities made decisions about whether to approve such research and under what conditions it must be conducted. As noted above, the scientists supporting the end of the moratorium viewed national governmental approval and regulation of research projects sufficient for moving ahead. Plus ça change, plus c’est la même chose?
The next important development in this saga will come when the U.S. government releases its finalized framework for assessing whether to approve and fund “gain-of-function” research on H5N1. The U.S. has been the biggest funder of this research in the past, so, assuming the U.S. government continues to have this funding power, its new rules could exert influence well beyond the American scientific research community. With the public comment period on the proposed framework now over, the US government plans to finalize its new rules in the next few months. Stay tuned . . .
Thank You, Senator Lugar. And Welcome, Professor Lugar
Posted: January 28, 2013 Filed under: Biological, Chemical, Missile, Nuclear 1 CommentWhen I was an undergraduate student years ago, I had the opportunity to have lunch with a U.S. senator from Indiana named Richard Lugar–someone about whom, I now cringe to admit, I did not know much at the time. The Cold War was still frigid, but the world was not far from momentous changes few saw coming. I remember clearly my reaction to Senator Lugar–here is someone who thinks deeply about U.S. interests and cares about American responsibilities beyond our shores.
In his long career in public service, Senator Lugar exhibited those traits in many contexts, but perhaps most famously in his work to prevent the proliferation of weapons of mass destruction (WMD). In the very early 1990s, with his colleague Sam Nunn, Senator Lugar created the Cooperative Threat Reduction Program (CTRP), widely known as the Nunn-Lugar program, which is hailed as one of the most significant U.S. national security policies of the post-Cold War period. The program was effective in not only achieving its initial objective of helping states emerging from the Soviet Union’s collapse keep nuclear weapons and related materials and capabilities from falling into dangerous hands but also expanding into chemical and biological weapons and beyond the former Soviet states. In December 2012, the U.S. government and the non-proliferation community celebrated the 20th anniversary of the CTRP.
This milestone asks us not only to reflect on the past but also to probe the future. Senators Nunn and Lugar know better than anyone that the CTRP has not made WMD proliferation a relic of another time and place. Indeed, the CTRP’s expansion beyond nuclear issues illustrates both the dangerous legacy of chemical weapon arsenals and the difficult task of managing “dual use” knowledge and capabilities in the biological realm. Further, the CTRP approach is predicated on mutual political commitment to cooperation, a prerequisite not present in important contexts of proliferation concern, such as Pakistan, Syria, North Korea, and Iran. Worries have arisen with Russia too given its declaration in the fall of 2012 that it would not renew its CTRP agreement with the United States in 2013 without changes to the arrangement–a disconcerting development given the scale and seriousness of the remaining WMD threat reduction agenda in Russia.
Problems with Russia and the inhospitable political conditions for cooperative threat reduction in other contexts of proliferation concern do not spell the “end of Nunn-Lugar.” However, we are entering a potentially challenging phase for this strategy that requires thinking hard about U.S. interests and caring about American responsibilities. Cooperative WMD threat reduction might become increasingly complicated for external and domestic reasons.
Externally, maintaining progress with CTRP efforts faces shifting national interests, characterized foremost by Russia’s re-evaluation of its arrangement with the United States. The risk of such shifts is not the sudden embrace of WMD proliferation; rather it is the danger of slackening focus on the urgency of threat reduction. In addition, cooperative threat reduction strategies might well find future crises that involve proliferation concerns extremely hard to affect. Just think of the proliferation fears that experts have about the collapse of the Assad regime in Syria, the implosion of the North Korean regime, or the potential cascade effect of Iranian development of nuclear weapons.
Domestically, commemorating two-decades of CTRP success should not underestimate looming political problems. Richard Lugar is no longer in the Senate, which raises questions about who will assume the burden of leadership he bore effectively on this issue for so many years. And leadership will be needed because the United States is facing wrenching choices at home and abroad as the moment of reckoning with its worsening fiscal crisis is upon the nation’s political institutions. Senator Lugar’s defeat in a primary election demonstrates the lack of traction his statesmanship on WMD proliferation had with voters–a cautionary tale for any politician operating in an extremely polarized country fixated on domestic issues and living well beyond its fiscal means.
In January 2013, my employer, Indiana University, named Richard Lugar a Distinguished Scholar and Professor of Practice in its new School of Global and International Studies. Professor Lugar (how strange that sounds) is donating his senatorial papers to Indiana University, a gift that will provide a treasure trove of resources for research on many issues, but especially his dedication to reducing the dangers of WMD proliferation. We still have much to learn . . .
Arms Control Law 