Janet Phelan

To Whom it May Concern:

I am contacting you with grave concerns that the United States has violated the Biological Weapons Convention through its own domestic legislation. The violation appears to have taken place in Section 817 of the US Patriot Act, towards the end, wherein the statement appears that the prohibitions contained in the section (which largely reflect the verbiage of the BWC), do not apply to duly authorized US activity.

Below please find my complaint to the Inspector General of the United States Department of Justice, following inaccurate statements made concerning this issue by a DOJ press officer to this reporter. The gist of the concerns are contained in this report.

I have also made contact with the US State Department. No one will speak or respond to my questions on this subject. It is my understanding from a UN official that the depositories of the BWC are the United States, Great Britain and Russia.

I would appreciate your getting back to me at your earliest convenience. The implications of this violation are profound and this needs to be dealt with at an official level. In the absence of any response, I will shortly be launching a media campaign to raise public awareness concerning this.

Sincerely,

Janet C. Phelan
541 603-0514
The Salem News

From: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
To: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
CC: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Subject: Complaint to the IG Office re: Dean Boyd, USDOJ Press Officer
Date: Wed, 12 Jan 2011 14:45:46 -0500

To the Inspector General:

Below please find the thread of communications which reveals that US DOJ Press Officer Dean Boyd is attempting to lie to this reporter concerning an issue that has massive security implications.  The issue pertains to the discovery by this reporter that the US has violated the Biological Weapons Convention, an international treaty, through the US´s own domestic legislation. The violation occurs in Section 817 of the US Patriot Act, at the very end, where the law releases the US from the prohibitions contained in Section 817. 817 largely mirrors the BWC and this caveat violates both the spirit and letter of the BWC.

In his response to my inquiry, you will see that Dean Boyd cited the law which 817 amended, instead of responding to the questions about 817 itself. When this was brought to his attention he refused to comment further.

Please use this email address for our communications. If you have any further questions for me, you may also phone me at 541 603-0514.

Sincerely,

Janet Phelan
258 A Street #1-15
Ashland, Oregon 97520

From: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
To: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Date: Fri, 17 Dec 2010 10:33:22 -0500
Subject: RE: You are citing the wrong law, Mr. Boyd

As I advised yesterday, we have no further comment for you on this matter. You are certainly free to reach out to the State Department for its position on whether the particular statute enacted by Congress is in violation of the Biological Weapons Convention. You are also free to reach out to each and every member of Congress that wrote and enacted into law the statute you cite for their position on this matter. Thanks again.


From: Janet Phelan [mailto: This e-mail address is being protected from spambots. You need JavaScript enabled to view it ]
Sent: Friday, December 17, 2010 10:26 AM
To: Boyd, Dean (NSD); Janet Phelan; This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; Ortiz, Jacqueline I. (SMO)
Subject: You are citing the wrong law, Mr. Boyd


Please respond to my concerns about Section 817 of the U.S. Patriot Act, copied below.  Specifically, my concern relates to c) which I have highlighted in blue.

If you are unable to answer my questions, would you please refer this to someone else? If I do not hear back from you by end of business day today, I will bump my questions up to the next level.  Thank you.

Janet Phelan

USA PATRIOT ACT OF 2001


SEC. 817 EXPANSION OF THE BIOLOGICAL WEAPONS STATUTE

Chapter 10 of title 18, United States Code, is amended--



(1) in section 175--




(A) in subsection (b)--





(i) by striking "does not include" and inserting "includes";

(ii) by inserting "other than" after "system for" and

(iii) by inserting "bona fide research" after "protective";




(B) by redesignating subsection (b) as subsection (c); and

(C) by inserting after subsection (a) the following:


(b) ADDITIONAL OFFENSE- Whoever knowingly possesses any biological agent, toxin, or delivery system of a type or in a quantity that, under the circumstances, is not
reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose, shall be fined under this title, imprisoned not more than 10 years, or both. In this subsection, the terms "biological agent" and "toxin" do not encompass any biological agent or toxin that is in its naturally occurring environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source.;



(2) by inserting after section 175a the following:

SEC. 175b. POSSESSION BY RESTRICTED PERSONS.


(a) No restricted person described in subsection (b) shall ship or transport interstate or foreign commerce, or possess in or affecting commerce, any biological agent or toxin, or receive any biological agent or toxin that has been shipped or transported in interstate or foreign commerce, if the biological agent or toxin is listed as a select agent in subsection
(j) of section 72.6 of title 42, Code of Federal Regulations, pursuant to section 511(d)(l) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132), and is not exempted under subsection (h) of such section 72.6, or appendix A of part 72 of the Code of Regulations.

(b) In this section:



(1) The term "select agent" does not include any such biological agent or toxin that is in its naturally-occurring environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source.

(2) The term "restricted person" means an individual who--




(A) is under indictment for a crime punishable by imprisonment for a term exceeding 1 year;

(B) has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year;

(C) is a fugitive from justice;

(D) is an unlawful user of any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(E) is an alien illegally or unlawfully in the United States;

(F) has been adjudicated as a mental defective or has been committed to any mental institution;

(G) is an alien (other than an alien lawfully admitted for permanent residence) who is a national of a country as to which the Secretary of State, pursuant to
section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of chapter 1 of part M of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or section 40(d) of chapter 3 of the Arms Export Control Act (22 U.S.C. 2780(d)), has made a determination (that remains in effect) that such country has repeatedly provided support for acts of international terrorism; or

(H) has been discharged from the Armed Services of the United States under dishonorable conditions.



(3) The term "alien" has the same meaning as in section 1010(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3)).

(4) The term "lawfully admitted for permanent residence" has the same meaning as in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)).


(c) Whoever knowingly violates this section shall be fined as provided in this title, imprisoned not more than 10 years, or both, but the prohibition contained in this section shall not apply with respect to any duly authorized United States governmental activity. ; and



(3) in the chapter analysis, by inserting after the item relating to section 175a the following:

175b. Possession by restricted persons.



From: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
To: This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Date: Thu, 16 Dec 2010 12:37:20 -0500
Subject: RE: Per our conversation today

18 U.S.C. § 175 : US Code - Section 175: Prohibitions with respect to biological weapons
Search 18 U.S.C. § 175 : US Code - Section 175: Prohibitions with respect to biological weapons

* Search by Keyword or Citation

(a) In General. - Whoever knowingly develops, produces,
stockpiles, transfers, acquires, retains, or possesses any
biological agent, toxin, or delivery system for use as a weapon, or
knowingly assists a foreign state or any organization to do so, or
attempts, threatens, or conspires to do the same, shall be fined
under this title or imprisoned for life or any term of years, or
both. There is extraterritorial Federal jurisdiction over an
offense under this section committed by or against a national of
the United States.

(b) Additional Offense. - Whoever knowingly possesses any
biological agent, toxin, or delivery system of a type or in a
quantity that, under the circumstances, is not reasonably justified
by a prophylactic, protective, bona fide research, or other
peaceful purpose, shall be fined under this title, imprisoned not
more than 10 years, or both. In this subsection, the terms
"biological agent" and "toxin" do not encompass any biological
agent or toxin that is in its naturally occurring environment, if
the biological agent or toxin has not been cultivated, collected,
or otherwise extracted from its natural source.

(c) Definition. - For purposes of this section, the term "for use
as a weapon" includes the development, production, transfer,
acquisition, retention, or possession of any biological agent,
toxin, or delivery system for other than prophylactic, protective,
bona fide research, or other peaceful purposes.



From: Boyd, Dean (NSD)
Sent: Thursday, December 16, 2010 12:29 PM
To: 'Janet Phelan'; This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Subject: RE: Per our conversation today

Janet:

We have nothing further for you. Unfortunately, your legal analysis and interpretation of the statute appear to be deeply flawed.

Dean Boyd
Spokesman
U.S. Department of Justice
(202) 514-2007 main
This e-mail address is being protected from spambots. You need JavaScript enabled to view it


From: Janet Phelan [mailto: This e-mail address is being protected from spambots. You need JavaScript enabled to view it ]
Sent: Thursday, December 16, 2010 12:21 PM
To: Boyd, Dean (NSD); This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; Janet Phelan
Subject: RE: Per our conversation today

Mr. Boyd,

The caveats contained in 175 b appear to be nullifed by 175 c. This section is highlighted in blue, below.

I appreciate your getting back to me. I will look for your reply. The level  of concern now being evidenced by the agencies I have contacted about this is overwhelming.    It is most important that you address this inquiry.

I will look for your reply. Best wishes,

Janet Phelan
011 521 999 748-3398

USA PATRIOT ACT OF 2001


SEC. 817 EXPANSION OF THE BIOLOGICAL WEAPONS STATUTE

Chapter 10 of title 18, United States Code, is amended--



(1) in section 175--




(A) in subsection (b)--





(i) by striking "does not include" and inserting "includes";

(ii) by inserting "other than" after "system for" and

(iii) by inserting "bona fide research" after "protective";




(B) by redesignating subsection (b) as subsection (c); and

(C) by inserting after subsection (a) the following:


(b) ADDITIONAL OFFENSE- Whoever knowingly possesses any biological agent, toxin, or delivery system of a type or in a quantity that, under the circumstances, is not
reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose, shall be fined under this title, imprisoned not more than 10 years, or both. In this subsection, the terms "biological agent" and "toxin" do not encompass any biological agent or toxin that is in its naturally occurring environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source.;



(2) by inserting after section 175a the following:

SEC. 175b. POSSESSION BY RESTRICTED PERSONS.


(a) No restricted person described in subsection (b) shall ship or transport interstate or foreign commerce, or possess in or affecting commerce, any biological agent or toxin, or receive any biological agent or toxin that has been shipped or transported in interstate or foreign commerce, if the biological agent or toxin is listed as a select agent in subsection
(j) of section 72.6 of title 42, Code of Federal Regulations, pursuant to section 511(d)(l) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132), and is not exempted under subsection (h) of such section 72.6, or appendix A of part 72 of the Code of Regulations.

(b) In this section:



(1) The term "select agent" does not include any such biological agent or toxin that is in its naturally-occurring environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source.

(2) The term "restricted person" means an individual who--




(A) is under indictment for a crime punishable by imprisonment for a term exceeding 1 year;

(B) has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year;

(C) is a fugitive from justice;

(D) is an unlawful user of any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(E) is an alien illegally or unlawfully in the United States;

(F) has been adjudicated as a mental defective or has been committed to any mental institution;

(G) is an alien (other than an alien lawfully admitted for permanent residence) who is a national of a country as to which the Secretary of State, pursuant to
section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of chapter 1 of part M of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or section 40(d) of chapter 3 of the Arms Export Control Act (22 U.S.C. 2780(d)), has made a determination (that remains in effect) that such country has repeatedly provided support for acts of international terrorism; or

(H) has been discharged from the Armed Services of the United States under dishonorable conditions.



(3) The term "alien" has the same meaning as in section 1010(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3)).

(4) The term "lawfully admitted for permanent residence" has the same meaning as in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)).


(c) Whoever knowingly violates this section shall be fined as provided in this title, imprisoned not more than 10 years, or both, but the prohibition contained in this section shall not apply with respect to any duly authorized United States governmental activity. ; and



(3) in the chapter analysis, by inserting after the item relating to section 175a the following:

175b. Possession by restricted persons.


From: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
To: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Date: Thu, 16 Dec 2010 10:32:08 -0500
Subject: FW: Per our conversation today

Janet:

Thank you for your e-mail. While we appreciate your inquiry, we disagree with your conclusion that the statute enacted by Congress is a violation of the letter or spirit of the Biological Weapons Convention and, with all due respect, believe your interpretation of the law is misconstrued. Please see 18 USC Section 175(b).

Dean Boyd
Spokesman
U.S. Department of Justice
(202) 514-2007 main
This e-mail address is being protected from spambots. You need JavaScript enabled to view it


From: Janet Phelan [mailto: This e-mail address is being protected from spambots. You need JavaScript enabled to view it ]
Sent: Monday, December 13, 2010 5:10 PM
To: Ortiz, Jacqueline I. (SMO); Janet Phelan
Subject: Per our conversation today



As requested, I am emailing my inquiry to your department. In the process of research for an article on the recent UN UPR of the human rights record of the U.S., I came across what appears to be non-compliance with an international treaty which the U.S. has signed--this would be the BWC. The non-compliance appears to be contained within Section 817 of the U.S. Patriot Act, which is the Expansion of the Biological Weapons Statute.  While much of the language of 817 reflects similar language in the BWC, there is a caveat at the end of 817 stating that the prohibitions contained in this Section are not applicable if the activity is authorized by the U.S. government.

And there is the issue, for this appears to violate both the letter and the spirit of the BWC.

I would appreciate someone from your department contacting me at your earliest convenience.

I write for a number of venues, including the San Bernardino County Sentinel and the Salem News.  I also regularly guest on a number of different radio shows.  I believe this story to be of enormous resonance and magnitude and will be expecting your prompt reply.


Sincerely,

Janet Phelan
011 521 999 748-3396 (cell)
541 603-0514