During the Fall of 2001, we witnessed anthrax attacks on the United States government that were obviously designed to shut down the government at a very critical time immediately after September 11. It was during this time that Congress should have been in session, making decisions regarding oversight of the Executive Branch of government. This note will discuss some historical background for the law, policy and science of biological weapons here in the United States.
The US has had, at least going back to World War II, an extremely aggressive offensive biological warfare program. In 1969, President Richard Nixon decided to discontinue this program (at least with regard to biological “agents,” which are used as weapons, as opposed to “toxins,” which were theoretically for researching methods of immunization and therapy). There were two reasons for discontinuing the weapons program: (1) it was counter-productive militarily, as biological weapons were very difficult to control, and (2) the US already had massive superiority in nuclear weapons. Biological weapons were seen as the “poor man’s atom bomb” and Nixon wanted to get rid of them to prevent Third World nations from acquiring relatively inexpensive weapons of mass destruction.
In accordance with President Nixon’s order, the total destruction of antipersonnel biological agents and munitions was completed by May of 1972.  It is believed, however, that the Central Intelligence Agency (CIA) continued to research biological weapons in spite of the President’s order.
The US signed on to the Biological and Toxin Weapons Convention (BTWC) on 10 April 1972.  The BTWC entered into force on 26 March 1975. This convention prohibits the research, development and testing of biological weapons, agents and compounds. The convention has an exception for prophylactic and defensive purposes. There remained, however, a Chemical and Biological Warfare unit lurking in the Pentagon, starved for funds and wanting to come back to life.
The administration of President Ronald Reagan came to power in 1980. The Reagan administration took the position that the US was going to exploit its superior technology with regard to all types of weapons. This also included the new technologies of gene splicing and genetic engineering. Massive amounts of money, hundreds of millions of dollars, were poured into researching and developing what were claimed to be “defensive” biological agents.
The way the Reagan administration did this was by investigating every exotic disease one could imagine for the purpose of developing vaccines. In this way, the US operated within the exceptions of the BTWC. Of course, the technology used to get the vaccine is exactly the same technology used to create the agent. In fact, the agent is usually created first in order to then produce the vaccine. After one creates the agent, one creates the vaccine and then a delivery device. The result is a biological weapon.
Much of the research for these biological weapons was being done at universities around the country. The tip-off in many of these government contracts is that they call for the development of an aerosol delivery device. This is important because most biological warfare agents are delivered through the air.
Meanwhile, the Reagan administration was cutting back funding for the National Science Foundation (NSF). The effect was that second- and third-rate scientists, who were no longer able to receive research funds from the NSF, were forced to turn to the Pentagon for funding. 
On September 13, 1985, the Council for Responsible Genetics (CRG) had a Congressional Briefing on Capitol Hill. I was asked to participate in this briefing and to explain what the Administration was doing and how dangerous the situation was. The US government was funding scientists to research biological warfare technology and it was going out all over the country, indeed, around the world.
I was then asked by the CRG to help draft legislation to deal with this problem, in particular the abuse of genetic engineering technology for biological warfare purposes. I worked in conjunction with the CRG scientists and the biotech industry. At that time, the biotech industry had no desire to get into developing biological warfare technology and the industry supported the proposed legislation. The result was the Biological Weapons Anti-Terrorism Act of 1989. 
The Reagan administration fought the proposed legislation tooth and nail. They knew full well that the legislation was designed to stop what they were doing at the Pentagon. The Act makes it very clear that research, development or testing of biological warfare agents would be punished by life in prison.
While this fight was going on, the Reagan administration authorized at least 40 shipments of weapon-specific biological agents to Iraq from the American Type Culture Collection, which is a large scientific institute. The Collection cultures every known type of disease for scientific purposes. It was clear that the Reagan administration was shipping all of these materials to Iraq knowing full well that Iraq was going to develop biological weapons and use them against Iran. 
President George Bush, Sr. was elected in 1988. The question was whether we should continue to push for the legislation or abandon the project. The decision was made to go forward. To the credit of President Bush, Sr., the moment his administration came into power, all opposition to our legislation stopped. We were advised, however, that it would help on the Hill if we would repackage it as a piece of legislation designed to deal with biological weapons in the Third World, that there were crazies who were looking to develop biological weapons and our legislation was designed to deal with them. We agreed. The legislation was not changed, just the way in which is was presented. The Act was passed unanimously by both Houses of Congress and signed into law by President Bush.
In the Fall of 1990, the US went to war with Iraq after the Iraqi invasion of Kuwait. President Bush, Sr., and then-Secretary of Defense Richard Cheney ordered all US military personnel to take experimental vaccines for anthrax and botulin. As was later revealed, the Reagan administration had shipped these biological agents to Iraq, and Iraq had weaponized them.
These experimental vaccines were given to over a half-million US soldiers. At least 50,000 of these soldiers later developed unexplained illnesses, generally referred to as “Gulf War Syndrome.” I personally believe that this syndrome is the result of these vaccines. They were experimental medical vaccines in violation of the Nuremberg Code on medical experimentation. 
In the last two years of the Clinton administration, the policy shifted back to the dual-use biological warfare work. Again, hundreds of millions of dollars were committed to research and develop every known exotic disease. The research was then turned over to the Pentagon, where it could be used to produce weapons. This is going on today.
Finally, the New York Times broke the story that the US government was violating the BTWC. The US was developing a resistant strain of anthrax with genetic engineering. The US had also developed super weapons-grade anthrax in quantities and strengths that have no legitimate defensive purpose. It is very clear that the US was back in the business of researching and developing biological agents. This is a clear violation of both the international BTWC and the domestic Biological Weapons Anti-Terrorism Act.
That is why the Bush, Jr. administration repudiated the verification protocol for the BTWC. These negotiations had been underway for quite some time. The convention has no verification provisions.
In Fall 2002, all of a sudden, Bush, Jr. repudiated the whole thing and tried to kill it. Why? Because it is clear we are involved in this type of work, whether the Pentagon, the CIA, their contractors, or all of them.
Finally we have the recent anthrax attacks in the United States. It was not clear what was going on until the New York Times published the details of the technology behind the Daschle letter. The technology behind this and following letters was very sophisticated. These anthrax samples had a trillion spores per gram. That is super weapons-grade.
There was also a special treatment to eliminate electrostatic charges so the spores would float in the air. One must have special equipment for this treatment. The only people who would have the capability to do this are individuals who are either currently employed by the Department of Defense or the CIA doing biological warfare work, or people who had been employed in that capacity. One would probably need access to one of the government’s biological warfare labs and there are only a handful of these labs in the country.
The day I read the New York Times piece, I called a senior official in the FBI who handles terrorism and counter-terrorism. The FBI was coordinating its efforts with Fort Detrick, which is one of these few biological warfare labs. The obvious problem with this is that the person responsible for the anthrax attacks could very well be one of the personnel from Fort Detrick.
Soon thereafter, the FBI authorized the destruction of the anthrax culture collection at Ames, Iowa. It had been determined that the anthrax used in the attacks was an Ames-produced strain. The entire supply was destroyed. This was obviously a cover-up. If you had access to that supply, then you could do a genetic reconstruction of where the anthrax used in the attacks originated.
I believe that the FBI knows exactly who was behind these attacks and that they have concluded that the perpetrator was someone who was or is involved in illegal and criminal biological warfare research conducted by the US government (the Pentagon or the CIA) or by one of the government’s civilian contractors. For that reason, the FBI is not going to apprehend and indict the perpetrator. To do so would directly implicate the government in conducting biological warfare research. So this is where we are today. The FBI says that they are working on it, but of course, that is ridiculous.
Francis A. Boyle is Professor of Law at the University of Illinois. He is the author of Foundations of World Order (Duke University Press, 1999) and The Criminality of Nuclear Deterrence (Clarity Press, 2002) Email: FBOYLE@LAW.UIUC.EDU