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Mere Biological Agent or Weapon of Mass Destruction? The Prosecution of “Bioterrorism” in the Pandem

By Michael Thompson

Introduction

This past Memorial Day weekend saw the thirtieth anniversary of the Biological Weapons Anti-Terrorism Act’s passage into law. How is the Act enforced today?

Observe a recent development in San Antonio, Texas. Prosecutors in the Western District of Texas filed a federal complaint in April against an individual who allegedly conspired to weaponize a biological agent against grocery stores, in violation of 18 U.S.C. § 175. At first glance, the incident looks like a foiled terroristic attempt to use biological weapons; the FBI’s Weapons of Mass Destruction Squad and the Joint Terrorism Task Force are investigating the matter, and Deputy Attorney General Jeffrey A. Rosen deemed Section 175 as among “the Nation’s terrorism-related statutes.”

But do we really know “bioterrorism” when we see it? In the case above, prosecutors charged the defendant, Christopher Charles Perez, under a statute “which criminalizes false information and hoaxes related to weapons of mass destruction.” Mr. Perez allegedly made a threat on Facebook “in which he claimed to have paid someone to spread coronavirus at grocery stores in the San Antonio area because he was trying to deter people from visiting the stores, purportedly in order to prevent the spread of the virus. . . . To be clear, the alleged threat was false; no one spread coronavirus at grocery stores, according to investigators.”

Mr. Perez’s case begs jurisdictional, constitutional, and normative questions as interesting as his fact pattern–questions we may wisely revisit if and before the next global pandemic arises. Is it possible for someone to use COVID-19 as a biological weapon in violation of Section 175, and if so, does the United States have the authority to prosecute such an act?

I.      Why is the United States invoking terrorism statutes for certain COVID-19 related acts?

Mr. Rosen recently issued prosecutors a memorandum regarding the prosecution of COVID-19-related crimes. He noted that COVID-19 “appears to the meet the statutory definition of a ‘biological agent’ under 18 U.S.C. § 178(1),” and thus certain crimes involving COVID-19 “potentially could implicate the Nation’s terrorism-related statutes.” Mr. Rosen then listed several authorities prosecutors could utilize, including those prohibiting the development or possession of a biological agent for use as a weapon, the use of a weapon involving a biological agent, threats by wire and mail, and false information and hoaxes regarding biological weapons. “Threats or attempts to use COVID-19 as a weapon against Americans will not be tolerated,” he warned.

Based on our current understanding of COVID-19, Mr. Rosen is probably correct in suggesting that the virus constitutes a biological agent; it is a “microorganism . . . capable of causing death, disease, or other biological malfunction in a human.”

II.    Okay, COVID-19 may be a biological agent. Does that give the Federal Government jurisdiction to prosecute for the purposeful infection of COVID-19?

Not necessarily. The Tenth Amendment of the Constitution implies that the police power generally falls to the States, not the federal government. To punish a criminal act that is committed within a state, the Government must demonstrate “some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States” (United States v. Fox). More specifically, federal courts must “be certain of Congress’ intent before finding that federal law overrides” the balance of federal and state powers (Gregory v. Ashcroft).

The Supreme Court addressed the federal government’s ability to prosecute the possession and use of chemical weapons in its unanimous 2014 decision of Bond v. United States (Bond II). The Court held that it was not clear that Congress intended a provision of the Chemical Weapons Convention’s implementing statute to give the federal government jurisdiction to prosecute all possible violations of the statute.  In interpreting that provision, the Court explained tht an educated English-speaker would not equate “the use of a chemical weapon” with “the use of a chemical that caused some harm.”

III.  How else does Bond II – or, for that matter, any appellate decisions following Bond II – help us understand federal jurisdiction in these cases?

A.    The Type and Circumstances

The type of biological agent and the circumstances in which it is used is likely relevant under a Bond II analysis. The Court employed these two factors in relation to chemical weapons in Bond II and found that the relatively minor chemical irritants Carol Bond used against her victim “[bore] little resemblance to the deadly toxins that are ‘of particular danger to the objectives of the Convention,’” (those objectives being the use of toxic chemicals in warfare or through acts of terrorism). Likewise, Ms. Bond’s use of chemicals to get revenge on her husband’s lover was not an equivalent circumstance to chemical weapons being used by a belligerent nation or terrorist organization. A key question for a federal court would be whether Congress contemplated microorganisms like COVID-19 being employed as weapons when it enacted the Biological Weapons Anti-Terrorism Act.

B.    The Commerce Clause

Whether a federal statute reaches a defendant’s local criminal conduct may depend on whether the defendant committed the criminal act using an instrumentality of interstate commerce or if the act substantially affects interstate commerce. In United States v. Cheng Le, 902 F.3d 104 (2d. Cir. 2018), for example, the Second Circuit found that the defendant’s search and acquisition of ricin, a lethal biological toxin, was not “purely local” because he used the Internet and the United States Postal Service–two instrumentalities of interstate commerce–to obtain the toxin in violation of the Biological Weapons Act. In Mr. Perez’s case, if a court similarly finds that the use of Facebook (and thus, the Internet) constitutes the use of an instrumentality of interstate commerce, it is possible that his COVID-19 hoax was not “purely local,” either. Alternatively, a court may argue that even though the threat was made using an instrumentality of interstate commerce, the target was just a local grocery store (which is likely not an instrumentality of interstate commerce).  To preserve state police power, a court could also demand a stronger showing of some nexus with interstate commerce. If the federal government could exercise jurisdiction merely because the accused’s activity occurred on the Internet, states would not be able to exercise police power even in situations that otherwise have no interstate nexus.

C.    Predominantly Federal Activities

Outside of a nexus with interstate commerce, the Bond II court also suggested that a criminal act may not be “purely local” if it is not an act predominantly left to the States. The Court recognized that the United States “undoubtedly has a substantial interest in enforcing criminal laws against assassination, terrorism, and acts with the potential to cause mass suffering. Those crimes have not traditionally been left predominantly to the States, and nothing [in this opinion] will disrupt the Government’s authority to prosecute such offenses.” The Supreme Court also cited several lower court opinions where the federal government could validly bring charges against individuals who “act[] with the potential to cause mass suffering,” including cases involving one’s possession of enough potassium cyanide to kill 450 people, to the detonation of a homemade chlorine bomb that required the evacuation of a residential neighborhood, to the possession of sodium cyanide (United States v. Krar, 134 Fed. Appx. 662 (5th Cir. 2005)). Consequently, if the Government can frame a defendant’s purposeful infection of another with COVID-19 as an act such as attempted or consummated assassination with a biological agent, an act of terrorism, or an act with the potential to cause “mass suffering,” it may be able to exercise federal jurisdiction over the alleged act.

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