Threat of Bioterrorism in America

Statement for the Record of
Robert M. Burnham
Chief, Domestic Terrorism Section
before the
United States House of Representatives
Subcommittee on Oversight and Investigations

May 20, 1999

Good morning Mr. Chairman and Members of the Subcommittee, my name is Robert M. Burnham, and I am the Chief of the Domestic Terrorism Section at FBI Headquarters. My current responsibilities include national oversight and management of the Domestic Terrorism Operations, Weapons of Mass Destruction and Special Events Management Programs for the FBI. Thank you for this opportunity to speak to you this morning about the Threat of Bioterrorism in America. I am here primarily to discuss the law enforcement concerns regarding existing federal statutes, particularly as they pertain to the threatened use and possession of biological agents. We believe that these existing statutes have significant gaps, which the President will propose to fill when he submits his Crime Bill to Congress.

Our response to these threats is constantly evolving and over the last several years our knowledge and experience in this area have expanded tremendously. The large number of cases we have addressed over the last three years has highlighted certain vulnerabilities in the current legislation which could significantly hamper future investigations.

Weapon of Mass Destruction (WMD) type cases, primarily those cases dealing with the threatened use or procurement of chemical and biological materials with intent to harm, have steadily increased. In 1996, 37 cases were opened by the FBI. In 1997, there were 74 cases opened, of which 22 were related to biological agents. By 1998, the FBI opened 181 cases, 112 of which were biological in nature. In 1999 there have been 123 WMD cases, 100 of which have been biological. In 1998 and 1999 combined, over three-quarters of the cases opened have threatened a biological release, and the biological agent most often cited in 1998 and 1999 has been anthrax.

Of concern is the fact that under existing federal statutes, there is no prohibition on any individual possessing any biological agents regardless of their lethality or whether the individual has a legitimate use for the agents. A brief discussion of several cases will serve to highlight these concerns.

The case involving Larry Wayne Harris has garnered national attention based upon his interest in biological weapons agents. In 1995, Harris ordered three vials of Yersinia pestis from a culture company. Yersinia pestis is the causal agent for bubonic plague. After the vials were sent, Harris called to inquire about them and the company from which he ordered the vials became suspicious. After consulting with the Centers for Disease Control and Prevention(CDC), law enforcement was contacted and the vials were recovered from the glove compartment of Harris's vehicle. Although Harris claimed to be a microbiologist who was writing a training manual for the Aryan Nations, he certainly did not have a facility or the training necessary to properly handle the material. However, he had broken no law in possessing the agent, or in maintaining it in his glove compartment. In fact he was ultimately charged under the Fraud by Wire statute for fraudulently using a laboratory registration number when ordering the agent. A misdemeanor would exist today for such conduct under CDC transfer regulations.

An individual by the name of Thomas Leahy came to the attention of the FBI in 1997 when he was arrested for shooting his stepson in the face. In the basement of Leahy's home was a makeshift laboratory where field tests indicated that he had produced ricin. Leahy was initially indicted for possession of the biological agent ricin for use as a weapon in violation of Title 18, Section 175, the Biological Weapons Anti-Terrorism Statute (BWAT). After further laboratory analysis it was also determined that he had attempted to grow botulism and had produced nicotine sulfate which he mixed with DMSO, a solvent, and placed in a spray bottle. As the case progressed it became apparent that proving Leahy intended to use the ricin as a weapon would be difficult. It was only after a superseding indictment for the weaponization of the nicotine sulfate that Leahy agreed to plead guilty to a violation of the BWAT Statute. Until evidence developed regarding weaponization of the nitrate sulfate, there was no clear basis for successful prosecution.

In another case in 1995, an individual by the name of Thomas Lavy entered into Canada from Alaska on his way to North Carolina. Lavy was stopped by Canadian Customs officials who discovered in his vehicle several guns, $98,000.00 in cash and white supremacist literature. Also discovered was a container of white powder which Lavy readily identified as ricin. The Canadians took the powder, and released Lavy. Sometime later, the FBI was advised of the incident by Canadian authorities and in the interest of public safety an investigation was initiated. Lavy was subsequently arrested and a search of his home conducted. Lavy was in possession of a large quantity of castor beans, from which ricin is derived, but stated that he had not produced more ricin. Lavy committed suicide while in a detention facility awaiting adjudication. He had perpetrated no clear threat; the mere possession of the ricin was not itself a violation of federal law.

In 1995, four members of the Patriots Council, an extremist group with anti-government and anti-tax ideals that advocated the overthrow of the U.S. Government, were arrested for plotting to kill a U.S. Marshal with ricin. They had produced the ricin in a home laboratory and planned to mix the ricin with DMSO, a solvent, which they would then smear on the door handles of the Marshal's vehicle. The plan was thwarted, however, and the four men were convicted. The FBI was able to discover and prove their plan to use the ricin as a weapon. Again had the subjects threat to murder the Marshal with ricin not been discovered, the outcome of the case may have been different. If possession of this biological agent without a legitimate purpose were illegal, individuals acting in instances such as this could be thwarted prior to the development of proof of the intended or actual use of the agent as a weapon. Merely possessing this biological agent, without intent to use it as a weapon, would not have constituted any crime under existing federal law.

As you are all aware, there has been a rash of threats around the country involving anthrax. These threats have affected businesses, schools, hospitals, and even court houses. The cost of the response to these threats is significant. For example, Los Angeles estimated that the cost to respond to the onslaught of threats they received around the New Year in 1999 was one and a half million dollars. Fortunately, the redirection of these emergency response assets did not have an adverse effect on the Los Angeles area's ability to respond to other crises. The arrest of two individuals involved in making threats in California was well publicized, and as a result of those arrests there was an immediate drop in the number of threats received throughout California. However the frequency of these threats still has the potential to desensitize people to the possibility of an actual attack and is of concern.

I could cite numerous other examples where time and resources were expended in response to these threats. I believe this aptly illustrates why passage of effective legislation addressing threat and false reporting of information regarding biological agents is imperative as a deterrent to the massive outlay of money and resources needed to respond to these bogus threats. To date, most of these cases have involved specific communicated threats to use a biological agent. Fortunately, we have not as yet had a major incident involving the actual release of a biological agent such as anthrax. Several cases have involved vague or veiled threats stating only that anthrax had been released. In addition, others have involved callers who have merely advised in an apparent non-threatening manner that anthrax had been released in the building. The net effect has been highly disruptive for the responding community. Under existing legislation regarding biological weapons, there must be a threat to use these agents as a weapon to be considered a violation. The individuals who have caused these mass disruptions could potentially evade prosecution by claiming they had not communicated a threat to use the biological agent as a weapon. This issue has already been raised by the courts. We believe that a provision criminalizing false reporting requirement would remedy weaknesses in current law.

As I have stated previously, the interest in biological agents and weapons continues to grow. Intelligence has indicated that terrorist groups, both foreign and domestic, have demonstrated an interest in acquiring biological materials and knowledge. In addition, literature containing recipes and modes of dissemination are available through "how to" literature and over the Internet. Whether the cases involve mere threats or actual possession of biological material, the disruption and potential damage to the public is potentially devastating. New legislation is needed to adequately support the agents and prosecutors who work to protect the public from those who would misuse biological agents as a weapon, and those who capitalize on the fear and panic that can be derived from the mere threat of a biological attack. The President's proposed Crime Bill will address these needs.

Thank you for you consideration today, and I will answer any questions you may have.