Court Allows Anthrax Lawsuit to Proceed

U.S. federal judge Colleen McMahon ruled earlier this week that articles in Vanity Fair and Reader’s Digest suggesting former Army scientist Steven Hatfill was responsible for the 2001 anthrax mailings were defamatory, the New York Law Journal reported (see GSN, Oct. 19).

In 2003, Vanity Fair writer and literary forensics specialist Donald Foster claimed the FBI had asked him to explore who was responsible for sending the letter tainted with anthrax. He said the bureau ignored his findings that Hatfill sent the letters to raise awareness of bioterrorism threats.

“Steven Hatfill was now looking to me like a suspect,” Foster wrote. “When I lined up Hatfill's known movements with the postmark locations of reported biothreats, those hoax anthrax attacks appeared to trail him like a vapor cloud.”

Hatfill was named as a person of interest in the case but was never charged with a crime, according to the Journal.

McMahon was not swayed by Foster and the magazine’s argument that the article was not defamatory because it discussed a federal investigation and was written as an opinion piece.

The article “does contain references to the fact that the FBI was conducting an investigation into the anthrax mailings that occurred in the autumn of 2001. And the article criticizes the FBI,” she said. “But it does not take a literary forensicist to figure out that the focus of the article is Foster's investigation, not the FBI's. And to the extent the article is critical of the FBI, it is because the FBI has yet to reach Foster's conclusions about Hatfill.”

McMahon also found that a Reader’s Digest article, which contained large portions of the Vanity Fair piece, had “all of the same red flags” (Mark Hamblett, New York Law Journal, Nov. 8).

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Governors Urge Extending Terrorism Insurance Act

Twenty-eight governors this week signed a letter urging congressional leaders to extend the Terrorism Risk Insurance Act, the Hartford Courant reported yesterday (see GSN, Aug. 5).

The legislation, passed in late 2002 to protect insurers from catastrophic terrorism claims, indexes the claims based on the amount of the insurer’s annual earned premiums. It is set to expire at the end of the year.

The Treasury Department in June said the subsidy is too costly. The Senate, however, is considering a two-year extension of the act, according to the Courant.

The governors’ letter urges Congress to consider a temporary extension “that ultimately leads to a viable long-term solution providing adequate protection and reduced taxpayer exposure” (Diane Levick, Hartford Courant, Nov. 10).

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Bush Administration Defends Iraq Intelligence

U.S. national security adviser Stephen Hadley said yesterday that the United States had a “very strong case” that Iraq had weapons of mass destruction during the run up to the Iraq War, the Washington Post reported (see GSN, Nov. 10).

Hadley also blasted U.S. lawmakers who supported the war three years ago and are now critical of the administration’s use of intelligence, according to the Post.

Hadley said he was charged by the White House to rebut “the notion that somehow the administration manipulated prewar intelligence about Iraq.” He said the intelligence used by the Bush administration to justify the war “represented the collective view of the intelligence community” and was “shared by Republicans and Democrats alike.”

“Some of the critics today believed themselves in 2002 that Saddam Hussein had weapons of mass destruction, they stated that belief, and they voted to authorize the use of force in Iraq because they believed Saddam Hussein posed a dangerous threat to the American people,” Hadley said in a press conference. “For those critics to ignore their own past statements exposes the hollowness of their current attacks.”

Democrats immediately fired back, with a group of senators issuing a statement that read, “Some critics of how the administration misused intelligence did believe that Saddam Hussein had weapons of mass destruction. What these critics object to is the hyping of the intelligence by the Bush administration.”

“In his march to war, President Bush exaggerated the threat to the American people,” said Senator Edward Kennedy (D-Mass.) in an earlier statement. “It was not subtle.  It was not nuanced. It was pure, unadulterated fear-mongering, based on a devious strategy to convince the American people that Saddam's ability to provide nuclear weapons to al-Qaeda justified immediate war.”

Hadley said that the intelligence used by the Bush administration was also believed to be true by the Clinton White House.

“The intelligence was clear in terms of the weapons of mass destruction,” Hadley said. “The case that was brought to him, in terms of the [National Intelligence Estimate], and parts of which have been made public, was a very strong case.”

Hadley also argued that a presidential commission led by retired judge Laurence Silberman and former senator Charles S. Robb (D-Va.) found no evidence that the White House manipulated intelligence.

The presidential commission called the intelligence failure one of the “most damaging intelligence failures in American history” (Peter Baker, Washington Post, Nov. 11).

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North Korea Nuclear Talks Recess Without Progress

The latest round of multilateral talks on North Korea’s nuclear ambitions ended today in Beijing with no sign of progress, the Associated Press reported (see GSN, Nov. 10).

China issued a brief chairman’s statement reaffirming the September agreement in which the six negotiating parties agreed to the goal of a “verifiable denuclearization of the Korean Peninsula,” AP reported.

The top U.S. delegate, Assistant Secretary of State Christopher Hill, demanded that Pyongyang cease all work at its Yongbyon reactor.

“They should be stopping their programs immediately,” said Hill.

Hill rejected North Korea’s demand for aid compensation for the interim step of shutting down the reactor.

“We are not prepared to launch a separate negotiation to have a freeze because freezing programs does not solve this problem,” he said. “We have to get rid of these things.”

Top North Korean envoy Vice Foreign Minister Kim Gye Gwan said the United States should lift sanctions on eight North Korean entities suspected of WMD trafficking.

“These kind of sanctions are in violation of the joint statement we have adopted and are going to hinder the implementation of the commitment we have made,” said Kim.

North Korea has also demanded that it receive a light-water reactor for electricity generation before it disarms. Hill said all other parties to the talks again agreed not to discuss the issue until Pyongyang dismantles its existing nuclear programs.

“All five countries have been very clear on the view that there will be no discussion of the light-water reactor until the appropriate time,” he said. “That appropriate time is not now.”

Diplomats said the next round of talks could be scheduled for as late as January.

“There was an assessment that it will be a little bit difficult to hold tangible meetings,” said South Korean envoy Deputy Foreign Minister Song Min-soon (Joe McDonald, Associated Press, Nov. 11).

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U.S. Denies Taking Part in Iran Nuclear Offer

Secretary of State Condoleezza Rice yesterday denied a report that the United States was involved in a new proposal aimed at resolving the West’s nuclear standoff with Iran, the New York Times reported today (see GSN, Nov. 10).

“There is no U.S.-European proposal to the Iranians,” said Rice. “I want to say that categorically. There isn’t and there won’t be.”

The proposal would reportedly allow Iran to carry out uranium conversion, but would then provide for enrichment on the territory of a third party — possibly a European country, Russia or even the United States, according to the Times.

Rice also denied having pressed for a deadline for Iran’s response to the offer before the International Atomic Energy Agency Board of Governors meeting on Nov. 24, the Times reported.

“I don’t talk about deadlines,” she said. “I believe that is not the way to conduct diplomacy.”

She said the United States and its European allies believe they have enough votes at the agency to refer the Iran’s dossier to the U.N. Security Council, but that such a vote would come “at a time of our choosing” (Steven Weisman, New York Times, Nov. 11).

Meanwhile, Russian Foreign Minister Sergei Lavrov said today that Moscow is cooperating closely with France, Germany, the United Kingdom and the United States on forging a compromise solution to the standoff, Agence France-Presse reported.

“Russia is cooperating closely with the EU troika, the United States and the IAEA to resolve politically all the questions linked to the Iranian nuclear program,” said Lavrov.

He added that Russia expects a swift response from Iran on a proposal by which Russia would enrich uranium on its behalf.

“We are expecting to have results in the near future,” he said (Agence France-Presse I/SpaceWar.com, Nov. 11)

Meanwhile, Iranian chief nuclear negotiator Ali Larijani said today that Iran is intent on enriching uranium on its own territory but would consider offers to contract the work, AFP reported.

“What is important for Iran is to enrich (uranium) on its soil,” said Larijani.

He added, however, that if Tehran were to receive a formal proposal for enrichment abroad “we will discuss it” (Agence France-Presse II/SpaceWar.com, Nov. 11)

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Senate Restates U.S. Policy on Using Tear Gas in Combat

By David Ruppe
Global Security Newswire

WASHINGTON — The U.S. Senate overwhelmingly approved legislation Wednesday that restates U.S. policy on the military use of riot control agents, prompting disagreement about whether tear gas could be used for offensive military operations in Iraq (see GSN, July 27).

The amendment to the Senate’s fiscal 2006 defense authorization bill would not allow such use, said Alan Pearson, director of the biological and chemical weapons control program at the Center for Arms Control and Nonproliferation.

Others observers are not so sure, and the author of the measure, Senator John Ensign (R-Nev.), said it clarifies that combat use of riot control agents in battlefield operations is allowed.

The amendment, which passed in a 98-1 vote, says that riot control agents “are not chemical weapons” and “are legitimate, legal, and nonlethal alternatives to the use of lethal force.” Therefore, they “may be employed by members of the Armed Forces in defensive military modes to save lives” the language says.

The measure, Ensign wrote in a press release following the vote, should allow for military use during urban hunts of insurgents in Iraq and Afghanistan.

“American and allied troops are going through terrorist-infested neighborhoods in Iraq and Afghanistan neighborhood by neighborhood and door-to-door, encountering innocent civilians as well as heavily armed insurgents,” he said.

“Tear gas is an effective alternative to bullets — an alternative that will protect our troops and the people they encounter on their mission to track down terrorists,” he said.

Edward Hammond, co-director of the U.S. and German-based Sunshine Project, in a widely distributed e-mail wrote that, “Those kinds of uses are plainly not ‘defensive military modes’ and so do not fall under the scope of permitted uses in [Executive Order] 11850, and are thus not permitted.”

Executive Order 11850, signed by President Gerald Ford in 1975, says such agents could be used in war only in “defensive military modes to save lives,” and listed four examples: for riot control situations; for reducing civilian casualties where civilians are used to mask attacks; for rescuing personnel or prisoners, and for noncombat convoy protection.

Pearson said yesterday he does not believe the Senate amendment permits using riot control agents in such “offensive” uses as door-to-door operations.

“I don’t think that the Senate agreed to that interpretation yesterday,” he said.

“The entire point of the [Executive Order] was to prohibit the offensive use of RCAs, because experience had shown that they were far too easily used as force enhancers to improve killing efficiency, and not really used to protect noncombatant lives,” he said.

Ensign’s amendment also would require Defense Department reporting on riot control policies, legal interpretations, and use in Iraq.

An earlier version of the bill introduced by Ensign last week said riot control agents could be used “in combat” as well as “other situations for defensive purposes to save lives.”

Passage of the amendment Wednesday without that mention of combat satisfied Pearson that it would not change or contradict U.S. riot control policy required by the executive order and the Chemical Weapons Convention, which entered into force in 1997.

“The amendment no longer promotes a policy that would directly violate U.S. obligations under the Chemical Weapons Convention — a treaty that our allies highly value and that is of great benefit to the United States and the members of the U.S. Armed Forces,” he said in the press release.

The United States was an early signatory to the Chemical Weapons Convention, which explicitly bans riot control agent use “as a method of warfare.”

Executive Order 11850 articulated U.S. policy before joining the Geneva Protocol on chemical weapons, which banned the use “in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices.”

After Ensign’s initial amendment was introduced, Pearson’s organization sent a letter to U.S. senators arguing that authorizing riot control use in “combat” is not allowed by the convention or the executive order. The version that passed addressed that concern, Pearson said.

“The Senate has established that current U.S. policy will not be expanded to include the broad use of tear gas and other riot control agents in war-fighting. That’s good — we don’t want to reintroduce the use of toxic chemicals for fighting wars,” he said.

Pearson’s interpretation of the amendment, however, appears at odds with that of its author. In the press release after passage yesterday, Ensign said the amendment would allow American troops to use tear gas “in certain combat situations.”

When Ensign introduced the second version of the amendment on Tuesday, he argued on the Senate floor that battlefield use of tear gas should be acceptable.

“It is shocking and unacceptable that under current policy our military is banned from using tear gas on the battlefield. Let me restate that.  Under current policy, our military is banned from using tear gas on the battlefield,” he said.

“This restriction on the use of tear gas is the direct result of the bureaucracy’s faulty interpretation of the 1997 Chemical Weapons Convention, an interpretation made by arms control advocates in Brussels and The Hague and regrettably at our own State Department,” he said.

Ensign’s press release said the amendment “corrects an interpretation” of the Chemical Weapons Convention that holds riot control agents are chemical weapons and that he said has hindered military tear gas use in combat. 

The 1997 Senate resolution of ratification of the convention, he maintained in a floor speech on Nov. 8, “included a condition in the 1997 Chemical Weapons Convention that preserved our right to use tear gas in conflict.”

Ensign’s argument appeared to be supported by Senator Joseph Biden (D-Del.), who in a floor debate yesterday said that riot control agents are not chemical weapons and that Executive Order 11850 does permit their use in “defensive” combat situations. 

Biden said two of the examples the executive order lists are combat situations where civilians are used to screen attacks and civilian casualties can be reduced, and in rescue and prisoner recovery missions.

The two examples Biden listed are themselves controversial, believed by some to be at adds with the Chemical Weapons Convention’s ban on using riot control agents as a “method of warfare,” because they say the treaty bans using those agents in any combat situation.

Biden also said, however, that he does not believe that Ensign’s amendment alters U.S. policy.

“As far as I can tell, Senator Ensign does not intend that anything in Executive Order 11850 be changed, nor that there be any change in the United States policy and obligation to fully obey the Chemical Weapons Convention, which binds each state party ‘not to use riot control agents as a method of warfare,’” he said.

Pearson also said he does not believe the amendment approved yesterday changes U.S. policy. He said in an e-mail that Ensign’s interpretation of the amendment overstates what the Senate signed up for.

“Whatever Senator Ensign says, the Senate voted on his amendment with the understanding that U.S. policy remains EO 11850, and that the EO will remain unchanged.  This understanding was clearly established, for the record by Senator Ensign himself, in yesterday’s debate.  Thus, the amendment doesn’t ‘correct’ anything,” Pearson wrote. 

That view also appeared to be the view of Senate Foreign Relations Committee Chairman Richard Lugar (R-Ind.). In a floor discussion of the bill Wednesday, Lugar said he supports the law “because I believe that it in no way modifies, changes, reinterprets, or otherwise revises the laws of the United States regarding the use of RCAs in war to save lives, nor in any way affects U.S. compliance with our international obligations. This amendment creates no new law, and changes no U.S. policy.”

Despite the amendment’s intention to clarify U.S. military riot control policy, there appears continued difference of opinion about what sorts of operations it and U.S. international treaty requirements allow.

“There certainly are differences of opinion both between the United States and other countries, and within the United States,” said Elisa Harris, a research associate at the University of Maryland’s School of Public Policy who once served as National Security Council director for nonproliferation and export controls in the Clinton White House.

Ensign’s amendment appears intended to address a complaint raised by Defense Secretary Donald Rumsfeld in February 2003 testimony before the House Armed Services Committee.

Rumsfeld called Chemical Weapons Convention riot control restrictions a “straightjacket” and said “We are trying to find ways that nonlethal agents could be used within the law” (see GSN, Feb. 6, 2003).

Ensign on Nov. 8 argued riot control agents are a “morally correct” option that could save civilian lives in Iraq, recounting a reported incident in which a mother and two children held hostage by insurgents were killed as U.S. Marines battled the insurgents.

“Perhaps the use of tear gas would have saved their lives; perhaps not. We will never know that. What we do know is that those Marines were not provided every tool with which to carry out this global war on terrorism,” he said.

Experts have said the use of all gasses in war was banned in 1925 in part because using less harmful agents could lead to use of more deadly ones in warfare. They have noted that during World War I, forces began with tear gas use and then moved toward lethal chlorine and other gasses.

“We need to be very careful here. It’s not in our security interests to be broadening the scope of circumstances under which U.S. military forces can use riot control agents because of the very risk that that will lead to the use of similar substances, and perhaps more lethal agents against U.S. forces,” Harris said.

“Most of the rest of the world has a different interpretation of the question of whether riot control agents meet the definition of a chemical weapon under the CWC, most countries think they do,” Harris said.

Citing the Chemical Weapons Convention,  then British Defense Minister Geoffrey Hoon in 2003 said the United Kingdom would not use riot control agents “in any military operations or on any battlefield” in Iraq. 

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U.S. Commits to Balloon-Based Missile Defense

The U.S. Air Force Space Command has committed to balloon-borne systems as a key component of missile defense, United Press International reported yesterday (see GSN, May 3).

“If you can tie it to a balloon, you can get to Near Space, (and) our prototyping efforts with communication and imagery platforms (are) showing promise towards giving us a low-cost persistent worldwide presence,” said the command’s top officer, Gen. Lance Lord.

According to Space.com, tests of the balloon-based system have gone well. 

“Tests of balloon-borne ground-to-ground [and] ground-to-air communications systems were staged to show the effectiveness of a low-cost, simple solution to meeting warfighter communication needs,” Space.com reported earlier this week. “The trial runs involved balloon-born SkySite command-and-control platforms developed by Space Data Corporation of Chandler, Arizona. Space BattleLab is now adapting the system to provide a platform for its Combat SkySat communications system.”

The Web site also reported that the Applied Physics Laboratory at Johns Hopkins University is working on a disposal inflatable “zeppelin” known as the High Altitude Reconnaissance Vehicle. This balloon could hover in one spot between 70,000 and 100,000 feet about the ground for two weeks at a time and could carry out radar and imaging missions.

If successful, a similar system could be used in ballistic missile defense, allowing for early warning radars to be mounted on floating platforms. These radars could provide over-the-horizon lead information and could detect enemy missiles, according to UPI.

Balloon systems would be especially useful if the United States chooses to move ahead with boost-phase interceptor programs. The systems also offer an advantage because they are less vulnerable in the air than some ground-based systems, UPI reported.

The systems also offer advantages to U.S. satellites, which travel in easy-to-detect and predictable orbits and are unable to perform evasive maneuvers (Martin Sieff, United Press International/World Peace Herald, Nov. 10).

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Critics Charge Dirty Bomb Radiation Guidelines Allow Dangerous Radiation Levels

Government experts and nuclear watchdogs are warning that proposed federal guidelines for “dirty bomb” response permit dangerous levels of long-term radiation exposure, the Los Angeles Times reported today (see GSN, Nov. 8).

The guidelines allow for radiation levels higher than those permitted at Environmental Protection Agency Superfund sites, which are contaminated with toxic waste. The new policy also allows contaminated food and drinking water to be shipped, sold and consumed during an “intermediate” phase that could last more than a year, according to the Times.

Following a dirty bomb attack, it “might reasonably be expected that a complete return to normal conditions can be achieved within a short period of time. However, if the impacted area is very large, then achieving even very low criteria for remediation of the entire area and/or maintaining existing land uses may not be practicable,” the guidelines said.

Nuclear Regulatory Commissioner Edward McGaffigan Jr., who assisted in drafting the plan, said that health risks and economic realities must be balanced.

“We have to do something, and do it as best we can,” he said. “Obviously we would clean up a building; we would remove most of the materials — but if there's some residual radiation that's no more than background levels, why should we raze it?”

Critics blasted the guidelines. 

“It's outrageous,” said Daniel Hirsch, chief of Committee to Bridge the Gap. “They are permitting much higher doses than are protective of the public, and appear to be doing so as part of an overall effort to relax public radiation protections.”

The guidelines were prepared by the Federal Emergency Management Agency, the Homeland Security Department, the Centers for Disease Control and Prevention and other federal agencies. They have been approved by the Office of Management and Budget and are expected to be published in the next few weeks, according to staffers at the agencies. The guidelines would take effect 60 days after publication.

“We want to have something active. I think the findings are great. Bottom line, it's a very well-done document,” said McGaffigan (Wilson/Bustillo, Los Angeles Times, Nov. 11).

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