The n e w e ng l a n d j o u r na l of m e dic i n e

leg a l issues in medicine

Bioterror and “Bioart” — A Plague o’ Both Your Houses

George J. Annas, J.D., M.P.H.

Since September 11, 2001, the threat of bioter- overreact if new biosafety rules are broken in
rorism has caused Congress and the President to ways that may create a biohazard or public health
dramatically increase research funding for coun- problem.
termeasures, including funding for new biosecu-
rity laboratories. The new kind of war against non- The C a se of Thoma s Bu tler
state actors who use terror to intimidate populations
has also made the creation of new ethical and legal Dr. Thomas Butler was the first and so far the only
rules for researchers seem critical. New laws have physician-scientist to stand trial in the United
been passed, and there have been proposals for States on a bioterrorism-related charge after Sep-
new codes of ethics for bioterrorism-related re- tember 11. On January 2, 2006, Butler completed
search. Almost five years after September 11, how- a two-year sentence that was imposed after a jury
ever, the outcome of the development of new re- trial and upheld by a U.S. Circuit Court of Ap-
search rules remains uncertain. peals.4 The bioterrorism-related facts no longer
Ethical guidelines for life sciences research seem to be in serious dispute.
that could be related to bioterrorism are critical, According to his colleagues in the field of
and the scientific community should be actively infectious disease, Butler has had a long and
engaged in setting the standards for such re- successful career dating from completion of medi-
search.1,2 As the National Research Council of the cal school and residency at Johns Hopkins Uni-
National Academy of Sciences has stated, “bio- versity at the end of the 1960s and his service in
logical scientists have an affirmative moral duty Vietnam in the Naval Medical Research Unit. He
to avoid contributing to the advancement of bio- was a faculty member at Johns Hopkins Univer-
warfare or bioterrorism.”1 It is reasonable for so- sity Medical Center and Case Western Reserve
ciety to expect that scientists will adopt the equiv- University before becoming chief of infectious
alent of the physician’s “do no harm” principle.1 diseases at Texas Tech University Health Sciences
Arguing for such an oath well before September Center in 1987, a post he held until his trial. His
11, literary scholar Roger Shattuck noted that it work on plague (Yersinia pestis) dates from his ex-
could “help scientists scrutinize the proliferation periences treating civilians in the Vietnam War.
of research in dubious areas” as well as “renew Most recently, this work involved research in Tan-
the confidence of ordinary citizens” in what is a zania, where he and a colleague there compared
potentially revolutionary endeavor.3 the efficacy of gentamicin with that of doxycy-
As the debate about the role of ethical stan- cline in treating patients with plague infection.5
dards proceeds, some legal standards have al- The results of this research were published soon
ready been adopted. Even with their new legal after Butler was released from prison.6
powers, the Federal Bureau of Investigation (FBI) Butler traveled to Tanzania to help set up the
and Central Intelligence Agency (CIA) have been study in 2001, and he returned in 2002 to collect
unable to discover the source of the anthrax at- samples of Y. pestis taken from the subjects. He
tacks. The FBI investigations have, however, fo- returned to the United States with these samples
cused on two other biosafety cases that have be- without the required transport permits. In June,
come infamous. Neither of these cases involves he drove to the laboratory of the Centers for Dis-
bioterrorism, but both illustrate how — in a post– ease Control and Prevention (CDC) in Fort Collins,
September 11 world — the federal government Colorado, to have the samples tested, again with-
and the public can be expected to react and even out the required government transport permits.

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 The n e w e ng l a n d j o u r na l of m e dic i n e

In September 2002, he sent a set of plague iso- after Butler refused to plead guilty in exchange
lates back to Tanzania in a Federal Express box for a six-month sentence, he was charged with 54
labeled “laboratory materials” without the required additional criminal counts; these included mail
export permits, and in October, he flew from Lub- fraud, wire fraud, and embezzlement arising from
bock, Texas, to Washington, D.C. (to the Army Butler’s research for two companies (Chiron and
Medical Research Institute of Infectious Diseas- Pharmacia–Upjohn — now Pfizer) and conceal-
es), with plague samples without the required ment of two contracts with the Food and Drug
permit. Administration (FDA) from the university.4
In November 2002, after a series of confron- As part of Butler’s pay structure, a percentage
tations over timely documentation of complica- of his income was provided by the state of Texas
tions and death among subjects in a study of an- and the remainder came from the university’s
tibiotics for the biotechnology company Chiron, Medical Practice Income Plan, which included
Butler’s local institutional review board prohib- money earned from seeing patients, research
ited him from performing research on human grants, and clinical trials. All monies from these
subjects. On January 9, 2003, the board, dissat- sources, with the exception of consulting con-
isfied by his lack of cooperation, reiterated the tracts, were to be remitted to the Health Sciences
suspension in an e-mail.7 On January 10, he was Center. Butler entered into contracts with both
notified by letter of a formal inquiry into his ac- Pharmacia and Chiron in which his fee per sub-
tivities. On January 11, a Saturday morning, But- ject would be split between the Health Sciences
ler noticed that a set of 30 tubes of Y. pestis cul- Center and himself. These contracts, the first of
tures was missing, and he noted in his journal, which commenced in 1998, continued until Au-
“Set 5 missing!” The next day, he wrote, “Can’t gust 2001, and they did not come to the attention
explain other than intentional removal, suspect of the Health Sciences Center until July 2002.4
theft.”8 On Monday, January 13, 2003, he report- Butler voluntarily gave up his medical license
ed to the biosafety officer at the health center before the trial. After the three-week trial, which
that 30 vials of Y. pestis were missing from his included testimony from 40 witnesses, a jury found
laboratory. The next day, senior officials at the Butler not guilty on almost all the plague-related
health center met and decided to notify the lo- charges (which included lying to the FBI) and not
cal police and the health department. The police guilty of tax evasion. It did, however, find him
notified the FBI, and more than 60 FBI agents guilty on most of the charges related to his split-
and local police officers conducted an immedi- fee contract arrangements (44 of the 54 fraud
ate investigation. counts) and on 3 of the 18 charges relating to the
Butler was questioned by the FBI, and he waived transport of plague samples.4 He was sentenced
his right to counsel (this waiver is almost always to 24 months in prison and 3 years of supervised
a mistake). He first insisted that he did not know release and was charged $15,000 in fines and
what happened to the samples. However, after $38,675 restitution to the university. He appealed.
failing a lie-detector test (the failure was not ad- Five issues were raised on appeal. The two
mitted in court) and, he says, being told by an FBI most important of these issues dealt with the pos-
agent that if he signed a statement that he had sibly prejudicial effect of combining the “plague
accidentally destroyed the samples (to reassure counts” with the contract counts and whether
the public that there was no danger), that would there was sufficient evidence of criminal intent
be the end of the matter, he signed a statement relative to the failure to file the required ship-
to this effect.4,9 However, this statement was not ping forms for plague samples. Regarding the
the end of the matter. Butler was arrested, spent first issue, the appeals court ruled without much
six days in jail, and then was placed under house discussion (and arguably without much under-
arrest. In April 2003, a grand jury returned a standing of how medical research is conducted)
15-count indictment charging him with various that all these counts could be combined because
crimes relating to his transport of Y. pestis, mak- they all had to do with Butler’s “research efforts”:
ing false statements to the FBI, and tax evasion. “Butler’s handling of plague bacteria as part of
Texas Tech also turned against Butler and helped his research efforts was ultimately related to his
the prosecution reframe the university’s contract scheme to defraud HSC [Health Sciences Center]
disputes with him as crimes. In August 2003, by concealing both his contracts with the FDA

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 Legal ISsues in Medicine

and the split contracts Butler maintained with the previously argued against the introduction of ge-
two pharmaceutical companies.”4 If the Supreme netically modified food, and he had encouraged
Court agrees to hear his appeal, the possibly preju- activists to oppose it by means of “fuzzy biologi-
dicial effect of combining these counts is Butler’s cal sabotage” — for instance, by releasing ge-
strongest argument. netically mutated and deformed flies at restau-
The appeals court also had little sympathy for rants to stir up paranoia.10
Butler’s contention that the evidence was insuf- The day after his wife’s death, the FBI raided
ficient to show that he acted willfully in regard his home in full biohazard gear. Kurtz had been
to the only 3 plague-related charges (of 18 charg- studying the history of germ warfare for a new
es) he was convicted of: first, exporting plague project. In connection with this project, he was
to Tanzania without a license; second, describing growing bacterial cultures that he was planning
plague as “laboratory materials” on a Federal Ex- to use to simulate attacks with anthrax and plague.
press waybill; and third, violating federal hazard- He had obtained the bacteria samples (Serratia
ous materials regulations in shipping plague to marcescens and Bacillus atrophaeus) from a colleague,
Tanzania.4 Regarding the first and third plague- Professor Robert Ferrell, a geneticist at the Uni-
related charges, the court was persuaded that be- versity of Pittsburgh Medical Center, who had
cause Butler “had successfully and legally shipped ordered them for him from the American Type
hazardous materials [during the 1990s] at least Culture Collection. Kurtz and Ferrell were sus-
30 times before making this particular shipment” pected almost immediately of being involved in
there was sufficient evidence that he knew how a bioterror ring and were thoroughly investigat-
to ship it properly and that “his infraction could ed. Once the New York Department of Health
not have been due to a good faith mistake or a determined that the bacteria were harmless and
misunderstanding of the law.” As for Butler’s that Kurtz’s wife had died of natural causes, the
contention that he did not intend to deceive any- bioterrorism investigation was dropped. The Jus-
one by labeling plague “laboratory materials,” the tice Department nonetheless charged both Ferrell
court accepted the government’s argument that and Kurtz with four counts of wire fraud and mail
he had also certified on the same label that he fraud. The allegation was that Ferrell, at Kurtz’s
was “not shipping dangerous goods” and that request, defrauded the University of Pittsburgh and
the jury could reasonably conclude that he knew the American Type Culture Collection by repre-
“that plague was a dangerous good requiring the senting that the bacteria samples he ordered
proper identification.”4 would be used in his University of Pittsburgh
laboratory.11 Neither case has yet gone to trial.
“ Bioar t ” and Bioterr orism Exactly what Kurtz was planning to do with
the bacteria is unclear, but serratia, which is
Shortly after Butler’s trial, in another part of the known for its ability to form bright red colonies,
country — Buffalo, New York — FBI agents were has been used in biowarfare simulations in the
called in to investigate a suspected act of bioter- past. Perhaps its most well-known use was a
rorism in the home of Steve Kurtz, a professor 1950 simulation in which an offshore naval ves-
and artist at the State University of New York at sel blanketed a 50-square-mile section of San
Buffalo. Kurtz awoke on May 11, 2004, to find Francisco with an aerosol spray containing serra-
his wife dead beside him. Kurtz and his wife pre- tia to determine what dose could be delivered ef-
viously had cofounded the Critical Art Ensemble, fectively to the population.12 Whether using a sim-
an artists’ collective “dedicated to exploring the ilar technique as an art exhibit would constitute
intersections between art, technology, radical poli- bioart, biotechnology, or biohazard (or even bio-
tics and critical theory.”10 Kurtz liked to distin- terrorism) may be in the eye of the beholder even
guish what he did from the emerging field of more than in the eye of the artist or scientist.
“bioart,” which is perhaps best known to the pub- Bioart is not bioterrorism, but the two are re-
lic because of the notoriety of Alba, a rabbit that lated politically. As bioart curator and commen-
glowed green because of the insertion of a jelly- tator Jens Hauser has said, bioart aims “at the
fish gene. Kurtz thinks of bioart as consisting of heart of our fears” and is meant to “disturb.” He
stunts and his own art as an exploration of “the notes, “these artists expose the gulf between the
political economy of biotechnology.”10 He had apologetic official discourse about technosci-

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 The n e w e ng l a n d j o u r na l of m e dic i n e

ence on the one hand, and paranoia on the oth- versity researchers, that all ethical and legal re-
er.”13 Like defensive and offensive bioweapons quirements must be respected when undertaking
research, bioart and biotechnology may be im- research.”14 They continued, “Biosafety regulations
possible to distinguish by anything other than are not merely legal technicalities. They constitute
the researcher’s or creator’s intent. Thus, Alba, the some of the terms of the pact between science
bunny with the inserted jellyfish gene, is con- and the public that establishes public trust.”14
sidered to be and is accepted as a creation of Somerville and Atlas are correct to argue that
bioart, at least in the contemporary art commu- researchers must take law and ethics seriously,
nity; whereas ANDi, the monkey with the insert- and their call for a new code of ethics is reason-
ed jellyfish gene, is considered to be a creation of able. It would be too broad, however, to suggest
science, at least in the biotechnology community. either that there are no such things as “legal
Hauser was referring to paranoia in the face of technicalities” or that all such technicalities are
the “rapid acceleration of technical prowess.”13 reasonable. Jennifer Gaudioso and Reynolds M.
On the basis of the reaction of federal law en- Salerno of the Sandia National Laboratories, for
forcement to the actions of Thomas Butler and example, have argued persuasively that not all
Steve Kurtz, however, although the advances of pathogens and toxins pose the same risks and
biotechnology that have potential applications to that risk in the laboratory should “be a function
bioterrorism and biowarfare are scary, even scar- of an agent’s weaponization potential and con-
ier are the responses — in the name of prevent- sequences of its use” (rather than the current as-
ing bioterrorism — of law-enforcement agencies sessment of biosafety risk, which focuses on “in-
to legitimate scientists and artists whose actions fectious disease dangers and the risk of accidental
pose no threat to the public. exposure in the laboratory”).15 They also note that
Butler’s arrest came about one year after a under the regulations of the Uniting and Strength-
simulated bioterrorism event in Lubbock, Texas; ening America by Providing Appropriate Tools
this simulation involved the use of aerosolized Required to Intercept and Obstruct Terrorism
plague at a civic center.5 Simulations have been a (USA PATRIOT) Act and the Public Health Secu-
centerpiece of efforts to prepare for acts of bio- rity and Bioterrorism and Response Act that re-
terrorism. As we should have learned from our quire entities with certain agents to register with
obsession with building bomb shelters during the the CDC, only 323 of the 817 facilities that the
Cold War, however, simulations promote fear of CDC expected to register actually did.15 Other fa-
worst-case scenarios and make them look much cilities may register, but many research entities
more likely. Bioterrorism simulations such as Dark decided to discontinue their research projects,
Winter (smallpox) and Top Officials (TOPOFF) rather than conform to the new federal admin-
(plague) involve more art than science and are istrative and security rules for such research.15
likely to provoke a response based more on fear A 2006 National Academy of Sciences report re-
than logic. They should probably be classified as jects the use of an agent-specific threat list and
bioart in the sense of performance art, and they instead recommends adoption of a “broader per-
should have their most socially useful outlet not spective on the ‘threat spectrum’ . . . to ensure
in federal law-enforcement agencies or biosafety regular and deliberate reassessments of advanc-
laboratories but in television dramas like 24. es in science and technology and identification
of those advances with the greatest potential for
Bioterr orism and Science changing the nature of the threat spectrum.”2
Ethics and law are related, but they are not
The case of physician-researcher Thomas Butler the same. Law draws the line we cannot cross
has been the subject of many commentaries — without becoming “outlaws.” Even if we do not
most arguing that his prosecution represents a like it, we must nonetheless follow it (while work-
gross overreaction on the part of federal author- ing to change it) or risk, as Butler did, being
ities. Nonetheless, in an article in Science, Marga- prosecuted for being an outlaw. All Americans,
ret A. Somerville and Ronald M. Atlas argued that including physicians, should recognize that when
Butler’s prosecution “sent a clear signal to the re- the FBI wants to talk to them about their role in a
search community, especially scientists and uni- possible bioterrorist event, they should not talk

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 Legal Issues in Medicine

to the FBI without first speaking with a lawyer.

Table 1. Seven Classes of Microbial Experiments That Should Require Review.*
Americans can go to jail for violating the law,
but not for violating codes of ethics. We aspire to The experiments would:
uphold ethics — we deserve praise (at least some) Demonstrate how to render a vaccine ineffective
for behaving “ethically”; whereas we deserve none Confer resistance to therapeutically useful antibiotics or antiviral agents
for simply following the law, some of which is in Enhance the virulence of a pathogen or render a nonpathogen virulent
fact made up of “legal technicalities.”
Increase transmissibility of a pathogen
Because the differences between research on
offensive biologic weapons and research on de- Alter the host range of a pathogen
fensive biologic weapons are a matter of degree, Enable the evasion of diagnostic and detection methods
not kind, and because biotechnology research is Enable the weaponization of a biologic agent or toxin
an international activity, any evidence that such
research is doing more to put the public at risk * Data are from the National Research Council.1
than to protect the public will (and should) be
especially damaging to the entire enterprise. This
is one reason why Butler’s report of missing E thic s , Bioterr orism,
plague bacteria (still unaccounted for) could not and Life Science s Re se ar ch
be tolerated by federal officials who support the
expansion of research on countermeasures. It is Research directed at creating new pathogens or
also what makes Kurtz’s bioart so disturbing — toxins that have direct bioterror or biowarfare ap-
the public is confronted with the dark side of plications deserves condemnation. The National
bioterrorism-related research, and it provokes a Research Council, for example, has identified
response. The inherent dual nature of biode- seven classes of microbial experiments (Table 1)
fense research has been dubbed “the Persephone that should “require review and discussion by
effect,” which refers to Demeter’s daughter who informed members of the scientific and medical
was forced to spend six months every year with community before they are undertaken.”1 If such
Pluto in Hell so she could live the other half of experiments are undertaken at all, I believe there
the year on Earth.16 also should be a requirement for publication of
One reasonable response to the dispute be- the protocol and public input into the decision.
tween Butler and the Justice Department and Research directed at individual pathogens and
the dispute between Kurtz and the Justice De- their weaponization potential also risks the di-
partment could be Mercutio’s retort in Romeo and version of scientific resources from more impor-
Juliet: “A plague o’ both your houses.”17 This is tant public health concerns,19 just as it has seemed
because the public is currently more victim and to divert the FBI’s attention from real terrorists.
bystander than participant and seems much more There appears to be a consensus in the scien-
likely to be harmed than helped by much of the tific community that the free and open exchange
research. Members of the public recognize this of information is ultimately the best defense to
probability, and their skepticism of federal au- both naturally occurring pandemics and deliber-
thorities, of the effectiveness of countermeasures, ate biologic attacks.2,20 There is also a growing
of the existence of weapons of mass destruction recognition of the importance of developing an
in Iraq, and of the entire bioterrorism scare is international code of ethics for scientists as well
well illustrated by the few people who took drugs as a recognition that such a code must “become
to treat anthrax that were offered after the an- part of the lived culture” of scientists.2,20 Like
thrax attacks.18 This same skepticism, combined bioart, the development of this code remains a
with the lack of evidence of stockpiles of small- work in progress.
pox in Iraq and the certainty of side effects from No potential conflict of interest relevant to this article was re-
the drugs, also explains the small number of ported.

health professionals who volunteered to take the From the Department of Health Law, Bioethics, and Human
smallpox vaccine immediately before and shortly Rights, Boston University School of Public Health, Boston.
after the commencement of the war in Iraq.18

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 Legal Issues in Medicine

1. Committee on Research Standards and Practices to Prevent 10. Turner C. This is right out of Hitler’s handbook. Guardian
the Destructive Application of Biotechnology, National Research (London). October 20, 2005:18.
Council. Biotechnology research in an age of terrorism. Washing- 11. United States v. Steven Kurtz and Robert Ferrell, grand jury
ton, D.C.: National Academies Press, 2004. indictment 0-CR-155E (W.D.N.Y., June 2004).
2. Committee on Advances in Technology and the Prevention 12. Tansey B. Serratia has dark history in region: Army test in
of Their Application to Next Generation Biowarfare Threats, Na- 1950 may have changed microbial ecology. San Francisco Chron-
tional Research Council. Globalization, biosecurity, and the fu- icle. October 31, 2004:A7.
ture of the life sciences. Washington, D.C.: National Academies 13. Hauser J. Genes, genius, embarrassment. In: Hauser J, ed.
Press, 2006. L’art biotech. Nantes, France: Editions Filigranes, 2003.
3. Shattuck R. Forbidden knowledge: from Prometheus to por- 14. Somerville MA, Atlas RM. Ethics: a weapon to counter bio-
nography. New York: St. Martin’s Press, 1996:224. terrorism. Science 2005;307:1881-2.
4. United States v. Butler, 429 F.3d 140 (5th Cir. 2005). 15. Gaudioso J, Salerno RM. Biosecurity and research: mini-
5. Murray BE, Anderson KE, Arnold K, et al. Destroying the mizing adverse impacts. Science 2004;304:687. [Erratum, Sci-
life and career of a valued physician-scientist who tried to pro- ence 2004;305:180.]
tect us from plague: was it really necessary? Clin Infect Dis 2005; 16. Kwik G, Fitzgerald J, Inglesby TV, O’Toole T. Biosecurity:
40:1644-8. responsible stewardship of bioscience in an age of catastrophic
6. Mwengee W, Butler T, Mgema S, et al. Treatment of plague terrorism. Biosecur Bioterror 2003;1:27-35.
with gentamicin or doxycycline in a randomized clinical trial in 17. Shakespeare W. Romeo and Juliet. Act III, Scene I, line 108.
Tanzania. Clin Infect Dis 2006;42:614-21. 18. Annas GJ. The statue of security: human rights and post-
7. Gold R. With plague fears on rise, an expert ends up on trial. 9/11 epidemics. J Health Law 2005;38:319-51.
Wall Street Journal. April 14, 2003:A1. 19. Relman DA. Bioterrorism — preparing to fight the next war.
8. Enserink M, Malakoff D. The trials of Thomas Butler. Sci- N Engl J Med 2006;354:113-5.
ence 2003;302:2054-63. 20. Wheelif M, Rozsa L, Dando M. Deadly cultures: biological weap-
9. The case against Dr. Butler. 60 Minutes. October 19, 2003 ons since 1945. Cambridge, Mass.: Harvard University Press, 2006.
(transcript). Copyright © 2006 Massachusetts Medical Society.

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