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There is a further dilemma. The exponential pace of scienti¬c progress
drastically outstrips the incremental growth of law. The quantum dispar-
ity of pace is intrinsic to the respective disciplines of science and law.
Science is inherently accelerative; received truths should be aggressively
challenged. Law is inherently conservative; change derives incrementally
from precedent. With the passage of time, the gap between scienti¬c risks
and legal controls widens. Increasingly, there is a real danger that law
just can™t keep up. The rami¬cations here are critical. Even if we could
devise optimal answers to the bioscience paradox that maximize oppor-
tunities for bene¬cial science while minimizing risks of its deliberate mis-
use, those answers would quickly be obsolete. Even if we could weave
a net of controls suf¬ciently elastic and permeable to let science ¬‚our-
ish while suf¬ciently sensitive to warn us of criminal preparations, there
is the dilemma of how to catch a torpedo by casting that net from a
rowboat.
Accelerating globalization adds to the quandary. If all bioscience was
taking place in the United States, the pace of scienti¬c progress would still
outpace legal reform, but at least such reform could proceed in a con-
sistent authoritative framework. However, emerging bioresearch is exten-
sively distributed worldwide “ both a product of and a stimulant to glob-
alization that takes advantage of rapid trade in ideas and materials. The
more that science spreads, the more that a discovery that enables biovio-
lence could come from anywhere on Earth. Over a million scienti¬c articles
are published yearly, increasingly from nations that a decade ago had lit-
tle participation in cutting-edge science.5 Of course, whatever research
that is published can be instantly disseminated via the internet to other
scientists, students, and anyone else.
It makes no sense to supervise bioscience in one nation or even a few.
Whatever threats derive from emerging bioscience demand an interna-
tional approach “ legal controls must be implemented worldwide. If not,
scientists who are stopped from doing research in one jurisdiction would
simply take that research elsewhere.6 Consider the following perspective
offered by the United States National Research Council:

Without international consensus and consistent guidelines for oversee-
ing research in advanced biotechnology, limitations on certain types of
136 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

research in the United States would only impede the progress of biomedi-
cal research here and hinder our own national defense. It is entirely appro-
priate for the United States to develop a system to provide oversight of
research activities domestically, but the effort will ultimately afford little
protection if it is not adopted internationally. This is a challenge for govern-
ments, international organizations, and the entire international scienti¬c
community.7

Yet, it is a daunting challenge to try to harmonize laws among all nations
so as to consistently balance scienti¬c freedom and security. The com-
plexities of these highly nuanced issues are exponentially multiplied in
the international arena among radically incompatible notions of scien-
ti¬c freedom as well as of governmental authority to restrict that freedom
for the sake of security. Even benign initiatives in international law must
tread gingerly through the thickets of an anarchic State-centric system.
Indeed, as the globalization of science stimulates ever more dynamic pres-
sure for international regulation, the impediments of propelling law in a
contentious and disorderly environment impair development of compre-
hensive control mechanisms.
In the end, scienti¬c progress must win. Policies to address emerging
bioscience risks must admit that science will proceed regardless of legal
norms or constraints. Moreover, no nation that has capabilities and politi-
cal will to develop vaccines and other measures for resisting bioattacks will
abide by internationally imposed constraints on those defensive pursuits.
Even if rational approaches could be identi¬ed, who should supervise their
implementation? Few of us would consider legislating constraints on bio-
science, but even if we wanted to pass a law to contain bioscience, the law
would soon be washed away by an inexorable surge of knowledge.
With every passing day, the temptation rises to either give up efforts
for strengthening law or to impose retrogressive controls on science that
alienate the scienti¬c community from the rule of law. Neither option is
attractive. Answers here are intricate and provocative, yet one assertion
stands beyond any modicum of doubt: positive or negative, potent or triv-
ial, the implications of advancing bioscience currently face a legal system
that is wholly archaic and incapable of organizing institutional responses
to promote either security or justice, unnecessarily imperiling us all.


Constraining Science?
Do we really want to devise international legal controls that, at their core,
are supposed to stop science? To even raise this question is to enter into
137
IMPROVING RESISTANCE THROUGH SCIENCE

a sensitive area. A repeated theme throughout this book is the need to
impose only such minimal standards of good scienti¬c conduct that are
essential to carry out denial and interdiction policies but to avoid weighing
down legitimate research. It is imperative to carefully weigh regulation™s
bene¬ts for preventing bioviolence against the cost to scienti¬c innova-
tion.
At stake here is something far more profound than a utilitarian weigh-
ing of costs and bene¬ts. Scienti¬c research is human thought at its most
elevated, and its free pursuit is fundamental to humanity™s exploration of
our world. Restraint of that pursuit is repugnant to the dignity of human
freedom. Said Dr. Joshua Lederberg, “The profession of science is the
search for truths about the natural world; more precisely, it seeks veri¬-
able generalizations that simplify human comprehension and prediction
of natural phenomena.”8 At the core of concepts about freedom of thought
is respect for analytical investigations that comprise the pursuit of truth,
including unbridled inquiry that challenges traditional wisdom; scienti¬c
experimentation is thought par excellence. To limit science, even in the
name of security, is to restrict what people think about and therefore to
constrict human intellect.
Discussions of whether to limit publication are no less troubling. This
concern was the basis of an uproar when Australian scientists working
with mousepox (a nonlethal [to humans] relative of smallpox) injected a
gene “ Interleukin-4 “ and produced a “supercharged disease” for which
vaccines were ineffective and that, as a result, had a 100 percent fatality rate
among exposed mice. The methodology and its success provoked anxiety
because it showed how to intensify diseases by injecting a gene into a virus
and thereby spawn decimating consequences.9
Many scientists were troubled by the experimenters™ seeming indiffer-
ence to the potential malevolent applications of their discovery as well
as their publishing the results in the popular science press. Similar con-
cerns arose about the publication of the fully decoded genetic sequence
of the 1918 Spanish Flu10 (discussed in Chapter 2). Few scientists objected
to the research, but a vigorous debate ensued as to whether the decoded
genetic sequence should have been so widely exhibited.11 Although sam-
ples of the virus are strictly controlled, its component DNA strands are
widely available, and few viruses are so easily subject to regeneration as
in¬‚uenza.
Yet, constraints on publication are problematic. There are inseverable
links between the act of research and freedom of expression.12 Science is
138 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME


BOX 6-1. NATIONAL ACADEM I ES OF SCI ENCE™S LI ST OF “RES EARCH
OF CONCERN”

1. Experiments that would demonstrate how to render a vaccine ineffective;
2. Experiments that would confer resistance to therapeutically useful antibiotics or
antiviral agents;
3. Experiments that would enhance the virulence of a pathogen or render a non-
pathogen virulent;
4. Experiments that would increase transmissibility of a pathogen;
5. Experiments that would alter the host range of a pathogen;
6. Experiments that would enable the evasion of diagnostic/detection modalities;
and
7. Experiments that would enable the weaponization of a biological agent or toxin.

SOURCE: Biotechnology Research in an Age of Terrorism, NATIONAL RESEARCH COUNCIL OF THE
NATIONAL ACADEMIES, p. 5 (2004).



not merely the work of a lone scientist as much as an interchange of
theories to explore hypotheses. Scientists conduct experiments to re¬ne
their ideas and to test a theory™s validity. A central tenet of the scien-
ti¬c method is the independent reproducibility of experimental ¬ndings;
communication of the knowledge learned to other scientists is essen-
tial. Scienti¬c publications must include enough technical detail so that
other investigators can repeat the experiment to verify results. Of all
types of communication, scienti¬c expression is likely to open avenues
of understanding that might otherwise not have opened and that, once
opened, cannot be reclosed.13 It undermines scienti¬c exploration, there-
fore, to suggest that a scientist may undertake an experiment to demon-
strate a theory but communication of its results must be restricted.
(See Box 6-1.)
Not to be ignored is the right of others to receive the research results,
including scientists, policy makers, and the general public. Doctors who
must decide if a drug should be prescribed must have access to the research
product of other physicians, scientists, and academics. More generally,
intelligent public debate depends on the free ¬‚ow of scienti¬c ideas. Many
scienti¬c advances (from Galileo™s observations to stem-cell research) have
proceeded from initiatives that some members of society have sought to
constrict. If the only messages that may be disseminated are those already
in the public domain, then a government could drastically restrict the
¬‚ow of information by merely restricting activities that are prerequisite
139
IMPROVING RESISTANCE THROUGH SCIENCE

for publication. The government could control access to ideas by plac-
ing restraints at the point where the information is initially developed or
obtained. Research is so intimately connected with the scientist™s goal of
generating and exchanging information that, without protection, the right
to communicate about science would be meaningless.
Moreover, it bears acknowledging that for a restriction to be imple-
mented and enforced, there must be someone doing the restricting. Should
that someone be a national government, an international authority, some-
one else? Even more ominous is the “slippery slope” of authoritative restric-
tions on science. In one context, a restriction might be purportedly justi-
¬ed by concerns for bioviolence. In another context, the impetus might be
opposition to stem-cell research or to the teaching of evolution. If political
authorities can decide the direction of science, then there is a substantial
risk that they will make those decisions according to the wishes of the con-
stituencies that put them in power, not necessarily according to what is
scienti¬cally true.
Yet another objection to secrecy stems from a very different direc-
tion. If experiments on the lethality of pox diseases or reconstructing
the 1918 ¬‚u are performed within or supported by a government facil-
ity, barring publication of that research might provoke suspicions of a
covert bioweapons program, especially if the research is accompanied by
preparations of vaccines for distribution to troops and citizens. Tightly
guarding the information suggests that it contributes to preparing hostile
capabilities. Today, as governments ¬nance most research, distinguishing
between bioresearch that is pure science from research that is done for mil-
itary purposes is increasingly dif¬cult. This issue is discussed more fully in
Chapter 8.

Virtues and Limitations of Codes of Ethics and Self-Regulation
Questions about how to address bioscience™s risks have occupied enor-
mous attention in the past few years. In the United States, these issues
have been hotly debated with respect to the First Amendment. A National
Academies of Sciences panel devoted serious intellectual energy to this
question,14 which led to the establishment of a new advisory body within
the U.S. government.15 The essence of that panel™s approach is that there
are innate risks in the progress of bioscience, and those risks are best
addressed through intra-science awareness, not overt regulation.16 More-
over, there should be opportunities for the scienti¬c community to inject
its concerns into relevant governmental decisions.
140 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

Altogether, the commitment to improving intra-science awareness has
commendably been pursued in the United States and elsewhere. Numer-
ous global organizations are devoutly on record for raising sensitivity to
the risks of malevolent bioscience and the need for bioscientists to volun-
tarily self-regulate. These proposals advocate that scientists who are best
informed about the implications of their work are, therefore, best able
to avoid doing research that might contribute to violence. Moreover, vol-
untary self-regulation keeps the lawyers and police at bay, insulating the
scienti¬c endeavor from harassment or tedious inquiries. In the name of
self-regulation, codes of scienti¬c ethics (see Box 6-2) have rapidly prolif-
erated in recent years “ a phenomenon worth praise.
Indeed, if ethical codes could solve the security questions associated
with advancing bioscience, these questions would have already faded
into irrelevance. But these codes have inherent structural ¬‚aws. Initially,
what do they cover? The criteria of dangerous research must be globally
uniform “ if States have different criteria of potentially dangerous biore-
search, there will be a “race to the bottom” as States compete to be the least
restrictive and therefore most enticing for emerging bioscience. Crucially,
scientists (as well as law makers) must precisely know what criteria apply to
speci¬c activities. The principle of legality requires that for a prohibition to
be enforceable, its application must be judiciously limited and speci¬cally
de¬ned so that potential violators should know if their conduct crosses
permissible lines.
Yet, experts have differing opinions on the de¬nition of potentially
dangerous bioresearch.17 Box 6-1 explores some issues compiled by the
National Academies of Science regarding “research of concern.” None of
the proposed codes de¬ne what type of research is covered, that is, what
type of research is potentially dangerous or could lead to production of
bioweapons. The problem is not so much the difference of opinions but
the absence of any authoritative process to resolve them. No code provides
any mechanism of how applicable research will be overseen. What is the
criterion of review, the methodology of review, the administrative process
of review, the rights and responsibilities of persons being reviewed? These
codes offer no answers.
Moreover, even if precise criteria could be identi¬ed, their application
to speci¬c experiments would demand constant renewal. The scienti¬c
issues change over time as does the community of scientists who might
undertake relevant dangerous research. For example, nanoscientists are
not commonly thought of as bioscientists, but their work is increasingly
linked to bioscience™s risks. Which group of tomorrow™s scientists should
141
IMPROVING RESISTANCE THROUGH SCIENCE


BOX 6-2. PRI NCI PAL CODES OF CON DUCT

For a representative list of codes of ethics, see Biosecurity Oversight and
a
Codes . . . Biosecurity Information
r UNESCO Declaration on Science and the Use of Scienti¬c Knowledge, adopted by
the World Conference on Science, 1 July 1999.
r International Committee of the Red Cross (ICRC) Preventing Hostile Use of the life
Science: From Ethics and Law to Best Prectice, November 11, 2004.
r American Society for Microbiology, Code of Ethics, 2005.
r American Medical Association, Guidelines to Prevent Malevolent Use of Biomedical
Research, June 2004.
r Council for Responsible Genetics (CRG), Campaign for The Peaceful Development
of the Biological Sciences.
r InterAcademy Panel on International Issues, Statement on Biosecurity, December
1, 2005.

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