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David Fidler, JD DR. INGLESBY: David Fidler is our next speaker. He's an Associate Professor of Law at the Indiana University School of Law. He is one of the world's leading experts on international law and infectious diseases. He is the author of numerous publications in legal and public health periodicals. His books include International Law and Infectious Disease, International Law and Public Health. He has served as an international consultant to the World Health Organization, to CDC, the Department of Defense, and the Federation of American Scientists. And his talk entitled "Legal Issues Surrounding Public Health Emergencies." MR. FIDLER: I would like to thank the Center for Civilian Biodefense Studies, and particularly Dr. Tara O'Toole, for inviting me to participate in this symposium. While I am appreciative of that invitation, I'm also a little intimidated. This is the first time I think since I played a corpse in a high school play that I've performed in front of so many people in front of the bright lights. (Laughter.) MR. FIDLER: And while my artistic interpretation of rigor mortis was brilliant -- (Laughter.) MR. FIDLER: -- I hope my comments today are slightly more entertaining. The growing concern about the use of a biological weapon by a state, or more likely a terrorist organization against the United States, often focuses on the potential that new advances in science will be employed for evil purposes. It is this potential that Dr. George Poste described yesterday as the peril lurking in the promise of biotechnology.
In many meetings on bioweapons that I have attended, discourse frequently turned to this specter of evil science. Individuals skilled in science ponder what kind of awful bioweapons competent but warped scientists could create. The conversation then typically delved into the horrors engineered pathogens could inflict on human societies. As a lawyer, I am not trained to put people in ambulances, but, rather, to chase ambulances. (Laughter.) MR. FIDLER: When I listen to scientists ponder the specter of evil science, I sit in mute fascination and horror, but I don't really have anything to add to those conversations.I wouldn't know a plasmid if it smacked my transposon. (Laughter.) MR. FIDLER: But having an ethical duty to justify billable hours exerts pressure on -- (Laughter.) MR. FIDLER: -- the creative juices of the lawyer. I was getting a little bit concerned in connection with bioterrorism that scientists were getting all of the attention and having all of the fun. But after sitting through many evil microbe engineering sessions, it dawned on me that even an evil scientist interested in bioterrorism might need a lawyer. (Laughter.) MR. FIDLER: So let me take you, therefore, with Dr. Evil as he visits the law offices of Rumpole, the Malevolent. (Laughter.) MR. FIDLER: Dr. Evil has developed a nasty bioengineered microbe, but he wants to make sure he uses the microbe against a very vulnerable society. He visits the law offices of Rumpole, the Malevolent, to find out what kind of legal system would be the most vulnerable to a bioterrorist attack. After commiserating with Dr. Evil about how bioterrorists and lawyers are misunderstood by society, Rumpole's advice might go something like this. Your ideal legal target for a bioweapons attack is a country that has a fragmented legal system, in that relevant legal powers to respond to a public health emergency are divided among actors at the national and local levels. Federalism is, for instance, a fragmented legal system. A federal legal system would be an attractive target because the overlapping competencies of national and local actors will create conflicts about who's in charge of a public health emergency caused by a bioweapon. While national and local authorities struggle to figure out who is in control, the epidemic spreads to other local areas, and the who's in charge comedy of errors begins all over again. In addition, a federal legal structure will create cumbersome decisionmaking processes in which national and local government entities and personnel need to participate. Can you imagine, Dr. Evil, trying to control a public health emergency through an ad hoc committee process operated by conference calls among the relevant national and local actors? Second, your ideal legal target would be a federal system that has placed public health powers predominantly at the local level. If local and state governments possess the bulk of public health powers, legally and constitutionally, then the fragmentation of a federal system is exacerbated in the context of a public health emergency, because the main responsibility for protecting public health will be at the local and state level, not the national level. With public health powers vested primarily in local and state governments, defenses against bioterrorism are only as strong as the local government's commitment to public health. In addition, with public health powers at the local level, there is more room for diversity and difference across the nation, which undermines a harmonized or coordinated approach to the public health emergency. A chain is only as strong as its weakest link. Third, your ideal legal target should manifest a long, historical neglect of public health law concerning infectious diseases. Such neglect will signify first that local public health officials and their legal advisers, if any, will lack familiarity and competence with the powers that they have. And, secondly, the laws on the books will perhaps not have kept pace with the changes in public health and legal principles, making them difficult or perhaps even inappropriate to apply in an emergency situation. Fourth, I would target a legal system that has not adapted the emergency powers of local and national governments to the specific challenges of a bioweapons attack. Local and national governments have emergency powers that would allow them to respond to a public health emergency in the case of a bioweapons attack. But if the governmental authorities have not adapted such broad emergency powers for the unique crisis a bioweapons attack would create, then the exercise of those powers will work to your benefit, Dr. Evil, by allowing ill-informed judgments and political panic to make the government look inept. Faith in government collapses and civil chaos begins. Equally important is the fact that the existence of broad emergency powers lulls officials into complacency that they have sufficient legal authority to respond to a bioweapons attack. Complacency, then, is the unwitting companion of chaos. Fifth, you want to locate a legal system that has approached emergency planning for a bioweapons attack by lumping bioweapons together with other weapons of mass destruction. Locate a legal system that has appropriated money and personnel to train firefighters and police to respond to a bioweapons attack. Six, your ideal target would be a legal system that emphasizes individual rights and restricts governmental powers to impinge on such rights. In such a system, the citizenry is wary of government incursions into its rights, creating a climate of distrust that works against governmental efforts to contain an epidemic. In this climate, citizens may well ignore government orders concerning isolation, travel bans, compulsory treatment, and quarantine. Such behavior will force the government to escalate its efforts to contain the epidemic, which might involve using military forces to enforce or implement public health measures. Escalation of this kind will fuel citizenry distrust of the government even more, particularly if the heavy-handed governmental tactics fail to stem the spread of the epidemic. Seven, I would find a legal and political system that has neglected its public health infrastructure and personnel for decades. Such neglect works to your advantage, Dr. Evil, in two ways. First, the public health resources will be insufficient to handle the emergency created by your microbe. And, secondly, when local and national governments exercise their legal powers, they will realize that they have insufficient resources to implement the legal authorities that they do have. Imagine, for example, local and national governments exercising their powers of quarantine, only to discover that they have inadequate resources, personnel, training, and expertise to implement the action. People forget that the rule of law goes beyond and must go beyond merely having legal powers on the books. The legal power to act in the public good must be supported by resources, personnel, training, and equipment to undertake effectively the legal authority that exists. When Rumpole finishes, Dr. Evil has only one question. Rumpole, the Malevolent, can you identify a legal system in the world today that has all of the characteristics you describe? Now, as a lawyer, my fictitious conversation between Dr. Evil and Rumpole, the Malevolent, scares me as much as fears of doomsday microbes engineered in the laboratories of loony scientists. The legal vulnerabilities of the United States, though, by a terrorist attack are the same whether a traditional bioweapons agent or a doomsday microbe is used. Further, some of the weaknesses of the American legal system in connection with bioterrorism, such as federalism and the protection of individual rights, constitute pillars of the rule of law in the United States that cannot be abandoned. As a country dedicated to the rule of law, the United States structures responses to national security threats through legal frameworks. Bioterrorism does not, however, fit within the two prevailing legal frameworks for dealing with national security threats. The first framework structures United States responses to national security threats from foreign states. Because the Constitution vests in the federal government the power to provide for the nation's security against other countries, this legal framework is unitary in that state governments have no role in countering threats from foreign nations. The second legal framework that shapes United States responses to terrorist threats -- crudely speaking, counterterrorist legislation in the United States reflects a law enforcement model. Federal law enforcement officials are empowered to prevent acts of terrorism and to apprehend and punish perpetrators. While terrorist acts do affect state governments and legal systems, counterterrorism is predominantly a federal affair. Neither of these frameworks applies well to bioterrorism. The gravest threat from use of a biological weapon is a public health threat. Under the Constitution, state governments, not the federal government, have primary responsibility for public health. This allocation of public health authority makes state governments and legal systems critical in preparing for and responding to national security threats from bioterrorism. This country has never developed a legal framework for national security in which state governments are more or as important as the federal government. The complexity of the legal challenges posed by bioweapons deepens when one considers the diverse areas of law that bioterrorism would bring into play. The current slide highlights at least five different categories of law that all feed into the legal challenge posed by bioterrorism. This complexity, particularly the presence of public health law, underscores the inappropriateness of traditional legal frameworks for responding to national security threats. Now, the key message to take home is that the United States needs to formulate a legal strategy as part of its efforts to bolster its defenses against biological weapon. In the context of bioterrorism, the American legal system is a complicated mechanism that is at present unprepared to deal with a public health emergency a bioweapon would unleash. In the remainder of my time, I would like to sketch one approach to crafting a legal strategy to support bioweapons defense. The first step is to identify what functions we want law to fulfill. I believe that five essential functions can be identified. First, deterring individuals, groups, and states from developing and using bioweapons.
Secondly, preparing governments and private enterprises for a bioweapons attack. Third, empowering governments to respond effectively to public health emergencies. Fourth, discipline the exercise of government power in public health emergencies to ensure individual rights and freedoms are respected to the fullest extent possible.
Fifth, facilitating government efforts at attribution of biological weapons attacks and retribution against the perpetrator. Now, as the current slide shows, the public health threat model connects directly to all five of these functions of law. While the traditional national security and law enforcement frameworks have only limited application to the functions, law should serve in defense against biological weapons. Now, under each of the five functions that I've mentioned, there are many, many different specific legal problems and issues that arise. Dr. Hamburg mentioned some of those this morning in her talk. I don't have time this morning to discuss in any level of detail these specific issues, but you will in my written paper find a long list of the specific legal issues that fall under each of those five functions of law. So if you're interested in that level of detail, I'll point you to my written paper. The second step is for each of the functions of law that I've identified to do the following things. First of all, identify applicable laws. Secondly, interpret the relevant laws to evaluate whether they provide the needed authority for responding to the threat by bioweapons. Thirdly, modify existing law, or, if necessary, create new law to strengthen the legal regime against bioweapons. Fourth, coordinate legal authorities, first of all, among departments of the same governmental level, and, secondly, between the federal government and the state governments. Fifth, implement the legal authorities through adequate funding, personnel, training, technology, and equipment. Now, the five functions of law and the five objectives can be combined in a matrix that might be useful in structuring a legal strategy for strengthening our defenses against bioweapons. I attempt in the current slide a very, very crude evaluation of where we stand today in terms of fulfilling the five objectives for each basic function of law.
Green circles indicate that the objective has more or less been achieved. Yellow circles indicate that incomplete progress has been made. And red circles indicate little or no progress. Overall, the matrix suggests the United States is prepared -- unprepared, excuse me -- legally for a bioweapons attack. Undoubtedly, people with more expertise than I have would complete this matrix differently, with more or less pessimism than I have expressed. Or other experts would construct different kinds of analytical matrices that would be more sophisticated than my crude attempt here today. But it is precisely these kinds of debates and that kind of dialogue which are needed to advance a U.S. legal strategy against bioweapons. The need for a legal strategy to bolster U.S. national security against bioweapons is manifest, and it deserves the attention of the highest levels of federal -- of federal and state governments. A legal strategy is necessary. But, please, it is not sufficient to protect the American people from the threat of bioweapons. We will never outlawyer the threat of bioterrorism, but we will not be smart in engaging in the battle against biological weapons without acknowledging that our vulnerability to these weapons stems in part from the structure, the substance, and the current state of the American legal system. It is time to make the rule of law a weapon rather than a weakness in confronting the specter of biological terrorism.
Thank you.
(Applause.)
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