Creating a New Brand of McCarthyism: Crime, Punishment and Weapons of Mass Destruction

In my June 6 article on Bond v. U.S., I asked whether the Supreme Court’s decision meant that we can rely on the criminal justice system under current legislation to effectively and consistently distinguish between and prosecute terrorist vs. common criminal cases involving CBRNe weapons and related materials.

From the following perspective – not exactly.

As it is, no authoritative definition of “Weapon of Mass Destruction” exists. Instead, definitions vary internationally, between U.S. federal departments (e.g. DoD) and their agencies, and in official government correspondence. However, how WMD is codified in US law pertaining to criminal and military use (18 USC §2332a and 50 USC §2302, respectively) makes it quite easy to distinguish whether an item in question is such a weapon based on its scope (e.g. quantity of material, weight of the main charge, or known lethal capacity). Unfortunately, under the cloud of the threat of terrorism, this literal definition leaves little room for interpretation or leniency when considering the full context of a case. Too often it has given law enforcement a green light to respond disproportionately to what most would consider common crimes in a manner that evokes the wanton abuse of power typical of 1950s McCarthyism.

In the years since federal agencies gained new powers to help them track down and punish terrorists, several U.S. persons have been subjected to invasive police searches and prosecutors insisting on harsh sentencing for what used to be considered common crimes. On many occasions, ambiguity and the overly broad application of U.S. federal legislation since before the current administration has demonstrated the risk of government overreach particularly in prosecuting cases involving the use or possession of a WMD, or more accurately, unconventional—chemical, biological, radiological, nuclear or explosive (CBRNe)—weapon. International non-proliferation treaties prescribe the terms under which governments can possess, use and distribute such weapons and materials, and definitions of the latter subsequently formed the basis of post-9/11 counterterrorism legislation. However, a slew of criminal cases like Bond v. US point to a lingering gap in legislation that has: 1) had law enforcement and the courts working at cross-purposes; and 2) places US persons at risk of being over-criminalized. The inconsistent manner in which CBRNe cases are being prosecuted is evident when examining the cases below:

Biological Agents. Aside from the widely publicized examples of bioterrorism incidents, no U.S. person to date (that I’m aware of) has been convicted under charges specific to non-terrorist related use or possession of a biological WMD. Fear of bioterrorism however, has led to aggressive responses to seemingly related incidents, as was the case with Thomas C. Butler when he reported several vials of plague missing from his laboratory stock. Butler, a respected scientist at Texas Tech University, was convicted in December 2003 of 47 of the 69 charges filed against him, which included three related to the improper shipment of plague samples, the remainder being related to fraudulent research contract administration, which many suspect were trumped-up charges.

There have been many cases, nonetheless, where a human pathogen has been used deliberately to cause death or injury in others. Before and since 9/11, most charges for biocrimes have run the gamut of attempted murder, murder, manslaughter, aggravated assault, and product tampering. In Texas in 1996, Diane Thompson, a clinical lab technician, contaminated pastries in her office’s break room, infecting 12 co-workers with Shigella dysenteriae (Type 2) bacteria. Her motive remains unclear, but her ex-boyfriend claimed she had poisoned him when he tried to break up with her. She was given a 20-year prison sentence.

Some countries or jurisdictions, including some in the U.S., have enacted laws that specifically criminalize HIV transmission. Brian T. Stewart, for example, was a phlebotomist convicted of first-degree assault in December 1998 for injecting his infant son in 1992 with HIV-contaminated blood to avoid paying child support to the boy’s mother. He was sentenced to life in prison and was eligible for parole in 2011. More recently in 2006, Sarah Jane Porter of London, England was jailed for 32 months after deliberately infecting her lover with HIV. She was suspected to have infected many others, but only admitted one count of recklessly inflicting grievous bodily harm with intent in May 2003. In December 2011, David Dean Smith of Michigan was arrested after admitting he had unprotected sex with “thousands” of partners with the intention of killing them by infecting them with HIV. He was charged with two felony counts of failure to disclose HIV status to a sexual partner, a charge carrying a four-year jail sentence and a $5,000 fine.

Toxins. Along with publicized attacks aimed at politicians, there have been a number of other scenarios in which individuals used or attempted to use a biological toxin, in particular ricin. In many cases, the intent was to kill or cause harm to a current or former spouse or lover, as in the 2006 case of Chetanand (“Ashley”) Sewraz from the Richmond, Virginia area. However, in other cases, individuals were charged and sentenced despite that intent was never actually determined. Examples include the 2003 conviction of Spokane Valley father of four, Kenneth R. Olsen, an adulterer who receive both biological and chemical weapons charged for making ricin, and Richard von Bergendorff, an unemployed loner in deep debt who’s cousin, Thomas Tholen (charged with failing to report a crime), found ricin in Bergdorff’s home.

Chemical Agents. In addition to the Bond and Olsen cases above, another example involves the February 2003 case of Hessam Ghane, an unemployed and severely depressed chemist who, like Bond, was charged with violating the federal law that codifies the Chemical Weapons Convention. Unlike Bond, however, Ghane voluntarily disclosed to a psychiatric hospital that he still possessed a jar of potassium cyanide, which he stole from a prior university employer, because he fully expected to use it to attempt another suicide later. In December, 2010, after having spent almost eight years in pre-trial detention facilities, a jury convicted him, and he was sentenced to ninety-seven months in federal prison. It is worth noting that Ghane, a US citizen from Iran who moved to the US in the 1970s, has been unsuccessful in his attempt to have his case reconsidered in light of the recent Supreme Court decision in Bond v. U.S.

Radiological and Nuclear Material. No individual or non-state actor has ever employed a nuclear weapon, and likely will never be able to. By comparison, only a few individuals worldwide have been found to possess, or have used or have attempted to use radioactive material in the commission of a crime. The most famous accusation of the latter, however, is the case of José Padilla (aka Abdullah al-Muhajir), a US citizen from New York who was arrested in Chicago in May 2002 on suspicion of plotting a radiological bomb (“dirty bomb”) attack. Weeks later he was detained as a material witness when the Department of Justice under President George W. Bush designated Padilla an enemy combatant and transferred him to a military prison, where he was reportedly subjected to various forms of torture for three years. Civil liberties groups convinced the government to allow him a civilian trial, but the DoJ then added him to an existing Miami terrorism conspiracy indictment, whereby the dirty bomb charges were dropped. In January 2008 he was convicted of aiding terrorists and sentenced in a Miami U.S. District court to 17 years and four months in prison by Judge Maria Cooke, who held a re-sentencing hearing this February.

In an international case, authorities in the Republic of Georgia arrested two men late in 2013, identified only as “Guram Ts,” who is 80 this year, and “Omar M,” who is 67, for attempting to sell radioactive material that could be used in a dirty bomb. The quantity of radium-226 the daily Rezonansi newspaper (according to a BBC translated report) alleged to have been found stored in specialized lead containers in the basement of Guram Ts’s apartment was seized.

Explosives. Between August 2012 and May 2013, the Pennsylvania Criminal Intelligence Center reported five incidents where low-yield (i.e. smokeless or black powder) improvised explosive devices using pipes less than 6” length in length or baby jars as containers, detonated and undetonated, were discovered near natural gas pipeline excavation sites and wells. The May 2013 case, which led to the conviction of Kelly James Schaffer of Elk County, involved the discovery of a pipe bomb outside a gated driveway belonging to EOG Resources whereby a security company hired to check gas wells called state police. Also, in addition to the ricin poisoning attempt on his wife above, Sewraz received concurrent 115-month sentences for possession of a destructive device by an alien, in violation of 18 U.S.C. § 922(g)(5), and possession of an unregistered destructive device, in violation of 26 U.S.C. § 5861(d), when he endeavored to use an explosive device to kill his wife and mother-in-law in their cars.

Regardless if one considers these events acts of common law crime, terrorism, or neither under the law, they reveal how broadly and aggressively existing federal laws regarding the use, possession or intended use of an unconventional weapon or related materials can be applied to widely contrasting circumstances. The force of the new laws, designed in the interest of national security, has increasingly been turned on common criminals rather than solely on the people seeking to do harm to the United States. More importantly, upon further inspection, many of these cases expose clear violations of the Fourth, Fifth, Sixth and Eighth Amendments of the U.S. Constitution, now justified legally under the guise of “national emergencies”. Given that the public must largely rely on federal government assessments of threats to inform national security decisions, what has been assessed as a perpetual terrorism threat risks a permanent suspension of habeus corpus and other such individual rights, freedoms and protections otherwise afforded by the Constitution.

The Supreme Court Justices fortunately saw reason in concluding the case of Bond v. U.S., but what of the others? Police and prosecutors must be provided with better tools to be able to determine with greater accuracy, before and at the point of arrest, whether or not a person actually intended to commit a personal crime or an act of terrorism using a CBRNe weapon or its material precursors, or had a legitimate (however absurd) reason for possessing it. In the Pennsylvania cases, for example, did the proximity to gas pipeline excavation sites denote potential acts of ecoterrorism, or a convenient open space for the foolish to have some fun with explosives? With more appropriate terms and a redefined scope of the law, we can restore balance to justify a degree of force and punishment that is more consistent with an evolved citizenry who proclaims to stand strong in the face of terrorism, than with one who reacts with the kind of obvious fear and weakness that hearkens back to a past generation.

What do you think?

Are we now seeing the evolution of a new type of law enforcement response to the threat of radical Islam akin to anti-Soviet McCarthyism?

Can federal law enforcement be relied upon to responsibly protect the public’s interests in times of national crisis, or are there inherent barriers in organizational culture that limit this?

Despite that “WMD” is clearly defined in US law, is an all-encompassing approach to prosecution appropriate, or should the law be re-written to reflect the diversity of CBRNe criminal cases and to ensure an appropriate law enforcement and judicial response?

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Come back for more on this issue.

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