How it’s legal to work as a corporate consultant and a Pentagon adviser at the same time.
An array of new federal intelligence and military offices have been launched in recent years with one overriding goal: to connect the slow-moving federal bureaucracy to private, venture capital-backed companies doing cutting-edge work.
Several military services and intelligence agencies have launched venture capital offices, and the CHIPS Act that President Joe Biden’s team is implementing is premised on public-private partnerships to advance the US’s high-tech manufacturing sector.
All these efforts can pose a set of ethical quandaries given the blurry line between the public interest and corporate interests. And a recent career move illustrates those stakes.
This week, lawyer Linda Lourie announced that she was joining the Pentagon’s newly established Office of Strategic Capital, which is designed to connect military-tech companies with private investors, as a part-time consultant. She posted on LinkedIn how excited she was to “attract and scale private capital for emerging and frontier technologies in support of national security.”
What stood out, however, is that she would maintain her private-sector job at WestExec Advisors, the ultra-connected Washington consultancy that works with tech and defense companies. The work of the Office of Strategic Capital is remarkably similar to the services that WestExec provides. Now, she would be working in the private and public sectors at the same time.
The career shift for Lourie appears messy, but it is not illegal. “Outsourcing defense to a corporate adviser doesn’t seem like an ideal way to put the public’s interests first,” Walter Shaub, a top ethics official in the Obama administration, told me.
“My work for the different organizations cover different issues, and although I don’t expect any conflicts of interest, I will be very cautious to ensure that it doesn’t occur,” Lourie posted in response to Shaub’s reply on LinkedIn. (Requests for comment from Lourie and WestExec Advisors were not returned.)
The Pentagon reiterated that principle and said Lourie wouldn’t be working on specific investment decisions.
“These employees are hired to contribute to broad policy discussions that relate to DoD’s role of informing and encouraging private sector investment in our nation’s critical technologies,” a Pentagon spokesperson said in a statement. “DOD ethics officials provide special government employees with clear guidelines on the ethics rules and specifically how to avoid conflicts of interest.”
But government ethics experts say it will be hard to verify no conflicts arose in those policy discussions: Hiring people as “special government employees,” as Lourie is, requires fewer disclosures for the public. More broadly, the gray area in which she’s operating connects to the larger questions of what it means to marry private corporations to government, and whether it’s the American people or the corporations that benefit.
The core question is whether Lourie’s dual-hatted roles are unique or representative of how the government works today. While OSC says there is only one other employee hired as a special government employee, the increase of these appointees in substantive roles across the government could pose similar issues.
As more and more government offices are established to grease connections to the private sector, and as former policymakers continue to use the revolving door into corporate consulting when they leave government, this issue is likely to keep occurring.
When the government seeks the private sector’s help
In December, the Department of Defense launched the Office of Strategic Capital to broaden private investment in technologies critical to national security.
The biggest consumers of many new military technologies are, of course, often the government. But since Pentagon contracts can take years, it means that startups often struggle to break into the federal bureaucracy. That’s been called the “valley of death,” and over the last two decades, a variety of new divisions have been designed to overcome the hurdles startups face in getting into the Pentagon. This has also been a key policy area that Michèle Flournoy, an Obama Pentagon official who co-founded WestExec Advisors with Antony Blinken in 2017, has researched extensively.
In 2019, Flournoy co-authored an article about how the US could maintain its tech superiority. One suggestion: “The government could also help connect critical technology and resource suppliers to private sector capital.” That seems similar to what the Office of Strategic Capital has set out to do.
In the 2024 Pentagon budget, the Biden administration has sought $115 million to fund the office, which will ultimately use financial tools like loans and loan guarantees to boost startups of interest. Its first year will largely consist of research. Only a handful of staffers are currently listed as being a part of the office, according to Linkedin. As it seeks new authorities to deploy investment tools, the office has partnered with the Small Business Administration’s investment program.
The idea behind the office isn’t new. It builds on investment efforts in the Army and Air Force and the Defense Innovation Unit (DIU), an incubator launched in 2015. Among the emerging startups that the DIU has backed to multibillion-dollar success is the military-tech company Anduril.
When Silicon Valley Bank crashed at the end of March, many military-tech startups were exposed to economic stress. The Office of Strategic Capital was “actively collaborating with our DoD and other government colleagues to advocate for our national security community” and “constantly monitoring national security-related impacts to the crisis,” according to a press release.
What’s off about working for government and the private sector at once
For all their successes, these public-private partnerships can create ethical issues.
Conflicts of interest are the main concern. That’s why government employees disclose their employers, investments, clients, and assets in filings, and then they work with ethics officers and their managers to avoid favoritism and guard against working on aspects of a project that could affect their own financial interests.
Roles that have close ties to the private sector and that hire government contractors pose particular issues. The director of the Defense Innovation Unit from 2018 to 2022, Michael Brown, allegedly engaged in unethical hiring and contracting, according to the unit’s CFO. Those complaints could not be substantiated by the DoD Inspector General, which cleared Brown last year. But the ordeal led him to withdraw his nomination for a senior Pentagon appointment.
Part-time employees, like Linda Lourie, create a distinct set of potential landmines.
Lourie worked in the Biden White House’s Office of Science and Technology Policy. When she left and joined WestExec in 2022, the firm said it was, “leveraging Linda’s robust knowledge-base to help our clients capitalize on strategic opportunities.” WestExec Advisors has worked for clients including Big Tech companies, prominent banks, prime military contractors, and new defense-tech startups. The firm has specialized in linking “private equity and multinational corporations to emerging technology.”
Lourie’s designation as a special government employee (SGE) would allow her to work simultaneously in government and at WestExec, without publicly revealing her clients.
An SGE is just anyone who is expected to work no more than 130 days in a 365-day period. Its use may have been legitimate during the early days of Covid, when bureaucracy was moving slowly amid pandemic restrictions. And when technocratic knowledge is needed for a specific issue, it’s a helpful classification. “One of the great benefits of the SGE option is you can attract talent for a limited time that you might not otherwise get,” says Don Fox, who worked as acting director of the Office of Government Ethics from 2011 to 2013.
But this particular SGE role comes with less transparency than other roles a private sector adviser might normally fill, such as working as a government contractor or serving on federal advisory boards. The latter is different because there are “more ethical safeguards” and more “transparency, like open meetings requirements,” says Kathleen Clark, a law professor at Washington University in St. Louis. “None of this applies to this kind of SGE.”
The Pentagon spokesperson said, “Employees designated as special government employees are limited to broad policy discussions, and are not included in discussions that relate to specific investments.”
But Jeff Hauser of the watchdog Revolving Door Project worries that the role is still prone to exploitation. “It would take Herculean firewalls in one’s brain — that human beings are not capable of — to ignore the fact that you continue to be employed at an entity that has ongoing interest in certain outcomes on decisions you’re working on in government,” he told me.
About 1,600 special government employees worked in the Office of the Secretary of Defense in 2021, the most recently available calendar year.
Experts say the overuse of them for high-profile hires can undermine trust in government ethics enforcement. The most prominent Biden appointee to use the designation has been Anita Dunn, who revolved in and out of the White House as a senior adviser to the president on short stints that allowed her to avoid publicly disclosing her clients and financial interests. Matt Miller, the incoming State Department spokesperson, appears to have been a special government employee when he worked as a White House comms official at the beginning of Russia’s invasion of Ukraine.
This trend was perhaps more prevalent in the Trump administration, with such high-profile appointees as State Department Ukraine envoy Kurt Volker. White House lawyer Emmet Flood started out as an SGE and was converted to full time. Mick Mulvaney, in his job as Ireland envoy, worked under this designation. But the Trump administration’s brazen and unprecedented ethical malfeasance shouldn’t obscure troubling dynamics in the Biden administration.
Shaub, who ran the Office of Government Ethics from 2013 to 2017, notes that Lourie could take proactive transparency measures to mitigate potential conflicts. The main concern is that WestExec, which already has numerous ties to the Biden administration, might appear to have an advantage given one of its senior members working in a government office doing work relevant to the firm.
“She could choose to disclose her clients and disclose her work for the government. That would be a voluntary disclosure, of course, but the optics are terrible and the government owes the public concrete assurances,” Shaub, who is now at the Project on Government Oversight, told me.
Lourie is not the only one in the office simultaneously in the public and private sectors. Kirsten Bartok Touw, an aerospace and defense investor at New Vista Capital, also works as an adviser to the Office of Strategic Capital.
Since the Pentagon’s Office of Strategic Capital is new, the responsibilities of the job might not be clear. “I would want to be updated on [the role] periodically, because with a brand new function or office, this could be iterative,” Fox, who previously served as deputy general counsel of the Air Force, told me. The scope of the work may evolve.
Many of the current ethics laws and major reforms came out of the post-Watergate moment, and the Trump administration tested their limits and enforcement. As Fox put it, “Public perception is, in some ways, everything.”
There is a solution to America’s Matthew Kacsmaryk problem.
The United States has a Matthew Kacsmaryk problem.
A longtime activist for the Christian right, Kacsmaryk is the Trump-appointed judge who tried earlier this month to ban mifepristone, a drug used in more than half of all abortions in the US, before his decision was blocked by the Supreme Court. Kacsmaryk’s mifepristone decision followed an array of others, on issues ranging from birth control to LGBTQ discrimination to immigration, where he sought to impose his will on the entire nation.
And really, the problem is even larger. Since the start of the Biden administration, right-wing litigants started funneling their lawsuits seeking nationwide rulings to judges they believe will reliably do the bidding of the most extreme elements of the Republican Party, regardless of what the law actually says.
On Wednesday, Sen. Mazie Hirono (D-HI) introduced legislation that seeks to prevent litigants from doing just that. It’s not a perfect bill, and it likely would need to be strengthened before it could stop all far-right litigants from funneling their cases to partisans like Kacsmaryk. It’s also utterly unlikely to be enacted by this Congress. But this bill is a hopeful sign that Democrats may get serious about stopping the worst judges in the country from setting federal policy.
“Judge shopping” isn’t exactly new — Chief Justice John Roberts warned in his 2021 report on the federal judiciary about judge shopping by patent lawyers, many of whom tried to shunt their cases to a particular judge in Waco, Texas — but it is an especially serious problem when litigants use it to bypass the entire political process to change federal policy on a nationwide basis.
Kacsmaryk, and judges like him, are able to shape federal policy so often because of the unusual way Texas’s federal courts assign cases to trial judges. Every federal civil case filed in Amarillo, Texas, is automatically assigned to Kacsmaryk, so Republican litigants who want to all but guarantee a trial court victory simply need to file their complaint in Kacsmaryk’s Amarillo courthouse. Similarly, virtually any lawsuit filed in Victoria, Texas, is assigned to Drew Tipton, another Trump judge whose record is similar to Kacsmaryk’s.
Worse, nearly all decisions handed down by a federal trial judge in Texas appeal to the United States Court of Appeals for the Fifth Circuit, a deeply reactionary court with a history of declaring entire federal agencies unconstitutional.
Hirono’s proposed legislation, the “Stop Judge Shopping Act,” is only two pages long, but it seeks to end some federal courts’ practice of allowing litigants to shop around for reliably partisan judges. If enacted, it would require any lawsuit seeking a nationwide order blocking a federal policy, or seeking an order blocking a federal policy that “extends beyond the parties to the civil action,” to be filed in a federal court in the District of Columbia.
In fairness, the short-term impact of this bill would be to move these lawsuits into a court that currently favors Democrats. At the moment, most of the seats on the United States District Court for the District of Columbia are held by Democratic appointees. And, while Trump did appoint four judges to this court, none have shown the same consistent disregard for the rule of law displayed by Kacsmaryk. This court’s decisions also appeal to the DC Circuit, a center-left court dominated by Obama and Biden appointees.
But the DC federal courts already hear an unusually large number of cases challenging federal policies. As Justice Ketanji Brown Jackson, who served as both a trial and an appellate judge in the DC federal courts, once said, the dockets in these courts are “largely comprised of legal disputes concerning the scope and application of the federal government’s power.” So shifting cases targeting federal policies to DC would also mean that these cases would be heard by judges who have an unusual amount of expertise on the kinds of questions that arise in such cases.
Hirono’s bill should be stronger
At least for the moment, the Stop Judge Shopping Act is an aspirational idea that has virtually no chance of becoming law in the current Congress. The GOP-controlled House is unlikely to pass a bill that diminishes the power of Republican partisans on the federal bench. And even if the bill somehow passed the House, it would still need to clear a 60-vote threshold to pass the Senate, given the filibuster.
But if it were to ever be seriously considered, Congress should tighten down its language to ensure that judges like Kacsmaryk and Tipton do not issue decisions that will still impact millions of Americans.
Currently, the bill applies to lawsuits seeking to block a federal law, regulation, or executive order. It requires all lawsuits that seek a “nationwide injunction” — that is, an order which applies throughout the entire country — or that seek a court order that “extends beyond the parties to the civil act” to be filed in the DC district court.
In theory, this bill should prevent most of the kind of sweeping policymaking that Kacsmaryk and similar judges now engage in fairly regularly. For example, the plaintiffs in Alliance for Hippocratic Medicine v. FDA, the mifepristone case, were doctors who oppose abortions and nonprofit organizations that also oppose abortion. If Hirono’s bill had been law when this case was filed, then Kacsmaryk’s mifepristone ban would have only applied to these plaintiffs, and not to the nation as a whole — effectively rendering the ban toothless because who cares if doctors with strong moral objections to abortion are not allowed to prescribe an abortion drug? It’s not like they were going to write such a prescription in the first place.
But many lawsuits seeking to block a federal policy are filed by state attorneys general, who have the power to bring lawsuits on behalf of their entire state. Indeed, there is a simply astounding array of lawsuits with names like Texas v. Biden or Texas v. United States, where multiple red states join together to ask judges like Kacsmaryk or Tipton to block a federal policy.
As currently written, Hirono’s bill could potentially allow a large bloc of red state attorneys general to file a lawsuit in Kacsmaryk’s courtroom seeking a court order that blocks a federal policy, but only in their states. Hirono’s bill would not allow Kacsmaryk to issue a nationwide injunction against this policy, but he might potentially issue an order that applies in half of the country.
This problem is easy to fix. Hirono’s bill could be changed to also require lawsuits seeking to block a federal policy within one or more states to be filed in the District of Columbia.
And, with that change, the bill could very well shut down the Texas injunction pipeline that gives a simply astonishing amount of power to the most shamelessly ideological judges in America.
Congress, though, would have to be willing to act.
How geopolitics and technological advances are making this a riskier world for bioweapons.
GENEVA — Venomous Agent X is a deadly nerve agent, though you likely know it by another name: VX. It’s an amber, oil-like liquid that targets the body’s nervous system. A single drop on the skin can kill within minutes. In 2017, North Korea is believed to have used VX to assassinate Kim Jong Un’s estranged half-brother in a Malaysian airport. Kim Jong Nam suffered severe paralysis, dead in about 20 minutes from a weapon of mass destruction.
Sean Ekins and his team thought of the toxin for a possible experiment, one he needed to meet a last-minute deadline for a presentation at the Spiez Laboratory in Switzerland, at a conference examining how developments in science and technology might affect chemical and biological weapons regimes. Ekins is a scientist and CEO of Collaborations Pharmaceuticals, a lab that uses machine learning platforms to seek therapeutic treatments for rare and neglected diseases. He and his colleague Fabio Urbina wanted to test and see if they could flip their AI software, MegaSyn. Instead of steering the software away from toxicity, they wanted to see if they could guide the model toward it.
The scientists trained the software with some 2 million molecules from a public database, and then modeled for specific, toxic traits.
In just six hours, the AI generated some 40,000 molecules that met the scientists’ criteria, meaning that, based on their molecular structure, they all looked quite a lot like toxic chemical agents. The AI designed VX. It designed other known toxic agents. It even designed entirely new molecules that the scientists hadn’t programmed for, creating a sketch for potentially lethal and novel chemical compounds.
The experiment was computational — a digital recipe for molecules like VX, not a physical creation of it or any other substance. But Ekins and his team used open source, publicly available data. The AI they used was also largely open source as well; they just tweaked the models a little bit.
Ekins was horrified. What he and his colleague had thought was a banal experiment ended up creating a cookbook for chemical agents. “If we could do this,” Ekins said, “what’s to stop anyone else doing it?”
VX, after all, is a banned substance under the Chemical Weapons Convention. A lab can’t just produce or go out and order up VX; countries face inspections to make sure they don’t have the stuff, or something like it, hanging around. VX doesn’t exist in nature, and it has no dual uses; that is, it has no therapeutic value or positive benefit. The only reason to have VX is to kill.
That isn’t the case for many things found in nature, like a virus or, well, your own DNA. Which is why this experiment got so much attention, not just among chemical warfare experts but among those who worry, specifically, about biological weapons. It showed just how simple it might be to apply it to the things that exist all around us, that can’t be tightly controlled, and that very likely have dual uses. Machine learning could be used to find ways to tweak a virus to make it less virulent, or more treatable. Or it could be used to make that virus more difficult to detect, or more deadly. And, if you or a nation-state are so inclined, wield it as a biological weapon.
Biological weapons, of course, are outlawed, too. The Biological Weapons Convention (BWC) prohibits the production, use, development, stockpiling, or transfer of biological toxins or disease-causing organisms against humans, animals, or plants. More than 180 countries are party to the pact, which came into force in 1975 as the first multilateral treaty to ban an entire class of weapon. And in the years since, the taboo against state use of biological weapons has largely held.
Yet a volatile geopolitical environment, combined with the rapid advance and increased access in the ability to edit and engineer pathogens, is straining and testing the nearly 50-year-old BWC as never before.
“It’s like a race between the technology being developed really quickly and the biosecurity committee racing to put the safeguards around it,” said Jaime Yassif, vice president of global biological policy and programs at the Nuclear Threat Initiative.
No treaty is perfect, but from the BWC’s beginnings, critics have said it lacked vital elements, like a verification mechanism to make sure everyone is following it. Global tensions, scientific advances, and the ever-expanding repertoire of what is possible with both biology and chemistry are making those flaws and cracks ever more visible.
Late last year, at the Ninth Annual Review Conference for the Biological Weapons Convention at United Nations Headquarters in Geneva, Switzerland, countries broadly agreed that they needed to find ways to strengthen the pact, to make it fit for purpose in a more chaotic, unpredictable world.
As is often the case in arms control, agreement is one thing, action another. The same forces buffeting the treaty are also making it nearly impossible to update it for a different age, or even agree on what it means now. The longer the BWC stands still, the faster barriers against a deliberate biological attack begin to fall away. That makes the world more vulnerable than ever to a threat the international community tried to eradicate 50 years ago.
Illness, weaponized
Biological weapons are the “poor man’s atom bomb,” said Yong-Bee Lim, the deputy director of the Converging Risks Lab and Biosecurity Projects Manager at the Council on Strategic Risks. They are weapons that can often be built on the cheap, using materials found in nature. Even before the world understood what caused disease, countries used things against their enemies they knew carried contagion: catapulting plague-infested corpses over fortified walls, or giving or selling clothes or blankets from smallpox patients.
But biological weapons were always held in a separate category in warfare. They are inherently risky: Contagions are hard to control and contain, and the same pathogens that can infect your target can also sicken you and your population. This is also why they tend to be used as a stealth agent of war; humanity has a general repugnance toward disease and poison that doesn’t extend to other armaments. “It has always been seen as an ungentlemanly weapon,” said Filippa Lentzos, a biosecurity expert and associate professor at King’s College London. “It’s never an element of your arsenal that you are proud to display. It’s always an underhand thing.”
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Mark Wilson/Getty Images
Those factors helped bolster a taboo against biological weapons, which the international community first tried to prohibit with the 1925 Geneva Protocol against chemical and biological methods of warfare. That pact didn’t stop many countries from building biological weapons programs through World War II, with germs used most notoriously by Japan in China. Well into the Cold War, the United States had a program of its own housed outside Washington, DC, at Fort Detrick, along with a chemical and biological weapons testing base in Utah.
The US wasn’t alone. The Soviet Union also had an offensive biological weapons project, as the two superpowers raced to match each other in armaments. But in the late 1960s, some high-profile mishaps linked to the US chemical and biological weapons programs — including a toxic cloud from a test of VX that killed or injured 6,000 sheep — along with public anger over the use of herbicides like Agent Orange during the Vietnam War, prompted Congress to pressure the Nixon administration to review the biological and chemical weapons programs. “Biological weapons have massive, unpredictable and potentially uncontrollable consequences,” President Richard Nixon said in 1969 after the release of the review, which essentially concluded that these kinds of offensive programs weren’t worth the risks.
The US would ultimately renounce the use of biological warfare, instead focusing its research on defense and safety measures. The American decision, which came after other allies turned away from their biological weapons programs, seeded the conditions for the creation of the BWC.
States have not engaged in known biological weapons attacks since — which is not the same thing as saying the treaty hasn’t been violated. The Soviet Union continued to build a big and sophisticated biological weapons program in the decades after it signed the BWC. That became clear after the fall of the USSR in 1991. Other signatories have been suspected of maintaining offensive weapons programs at different points post-1975, including South Africa and Iraq. Today, US intelligence assesses that Russia and North Korea maintain active offensive programs, both in violation of the BWC.
The good and the bad of the BWC
The BWC calls the deliberate use of biological weapons “repugnant to the conscience of mankind.” The document itself is short, just 15 articles, with the first explicitly banning the development, production, stockpile, and transfer of microbial or biological agents or toxins, “whatever their origin or method of production.”
It is broad and not particularly specific, but given the dual-purpose and rapidly changing nature of biological research, that is also its strength: “It does make the convention quite future-proof,” said Daniel Feakes, chief of the BWC Implementation Support Unit (ISU), the main body overseeing the convention.
The BWC is designed to be adaptable, but that also comes with a problem: It makes it difficult to ensure everyone who says they are following the BWC really is. Or, in arms control treaty-speak: It has no legally binding verification regime.
The Chemical Weapons Convention is arguably narrower, banning specific agents. It also has an enforcement body that carries out inspections. Nuclear treaties between the US and Russia, though they’re almost all but officially dead, included robust data-sharing and inspection. “Verification is a pretty standard element of most disarmament conventions, and that’s why people keep on coming back to the issue in the BWC,” Feakes said.
The BWC has none of that. Some of it has to do with the unique nature of biological weapons, which are distinct from things like chemical agents or nukes. But that has left the BWC with a huge gap since its inception.
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Frank Barrett/Keystone/Hulton Archive/Getty Images
“The holy grail that we’ve struggled with with the Biological Weapons Convention is how do you verify that the countries that have signed up to the treaty are not making biological weapons?” said Kenneth Ward, US special representative to the Biological Weapons Convention.
The closest thing that BWC has to a verification are Confidence Building Measures (CBMs), essentially a book report on a country’s bio activities. Not every country participates, or makes the documents public, and there is no way to fact-check what any country says.
And even if there were, the BWC is currently ill-equipped for such a task. The annual budget for the BWC is currently about $1.8 million, which in the past has come out to less than most McDonald’s franchise restaurants, according to one estimate in a 2020 book. About two-thirds of countries pay less than $1,000 into the BWC, including about 50 that pay around $100. That is considerably less than the Organization for the Prohibition of Chemical Weapons (OPCW), which has an estimated 2023 budget of more than $80 million to implement the Chemical Weapons Convention.
The Implementation Support Unit (ISU) that oversees the BWC just had its staff grow by a quarter — from three to four people. Compare that, again, to the OPCW, which has about 500 staff members. According to Feakes, what resources the ICU has mostly end up going toward the organizing and managing big meetings, like the Ninth Annual Review Conference. Even then, it’s barely enough: By the Friday morning session of the first week of the Review Conference in Geneva last year, the UN Web TV broadcast of the BWC negotiations had to be cut off because of cost concerns. If you can’t keep the live feed running, good luck preventing the potential proliferation of biological weapons.
That means the actual implementation of the BWC looks something akin to matchmaking, where a state may ask for technical or assistance or training, and the ISU seeks out another country or partner that might have the ability to actually do it, because the ISU definitely doesn’t.
But trying to fit BWC into the mold of other disarmament treaties is a lot trickier than you might think, largely because of the dual-use nature of biology. A nuclear warhead or VX gas has one purpose: warfare. But something like anthrax can and has been used as a biological weapon, and a legitimate lab may need to have anthrax on hand to make a vaccine. The same equipment you might use to try to find a cure to a virus or disease is much the same equipment you’d need to replicate or manipulate a virus for a biological attack. Germs are self-replicating which means countries don’t have to keep huge stockpiles of dangerous viruses.
Life science itself is far more decentralized than nuclear research, for example. Labs are spread out, and with materials fairly accessible. You can buy DNA online, and with technologies like benchtop DNA synthesis, you can print DNA in your lab with a tool that’s about the size of a microwave. There are far more people with expertise in the biological sciences, from geneticists to lab techs, around the world than there are nuclear scientists. A terror group getting ahold of weapons of mass destruction is always a risk, but the diffusion of biology means it’s probably easier to weaponize a virus — and certainly harder to detect — than it is to make a nuke. And, of course, the BWC only deals with nation-states anyway.
“You don’t want to create false confidence in a verification regime,” Ward, of the US State Department, said. “You have to be clear: What can we verify? What can we not verify? And we’re never going to be able to verify on a daily basis, is every biological facility in the world doing good things instead of bad things? It’s impossible to know.”
It’s also not like anyone hasn’t tried, either. Across decades, countries have attempted to figure out some way to create a verification mechanism. Perhaps the closest the BWC came was in 2001, but US opposition effectively sidelined efforts to create a more formal and transparent mechanism for verification for 20 years.
A lot has happened in those 20 years, including dramatic advances in life sciences — the mapping of the human genome, CRISPR gene-editing technology, mRNA vaccines, and more — which means the nature of biological threats is changing, too. Some verification is better than nothing, and almost certainly better than an absolute free-for-all — as the pandemic itself showed.
What is a bioweapon today — and tomorrow?
In a city, in one corner of the world, people start showing up to the hospital. They have some sort of respiratory illness, but it’s not clear what. The cases range in their severity: It is often fatal in older or immunocompromised people; for others, a mild to severe illness. Others still are asymptomatic, a virus in their bodies, spreading without any outward sign.
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Jim Watson/AFP via Getty Images
From there, the virus spreads, and spreads, and spreads. It shuts down economies, upends politics. Millions die; millions more get sick. A vaccine is developed quickly, so are treatments, but none are a perfect shield, especially as the virus, now out in the world, changes.
This is not a bioweapon but the Covid-19 pandemic. (Which, it’s worth emphasizing, is not a bioweapon, even if debates on its origins continue.) But what Covid-19 did do was show just how disruptive an entirely unintentional biological event can be. A deliberate one, or even the accidental release of a virus from a legitimate lab, could be far worse. (A 2018 pandemic tabletop exercise by the Johns Hopkins Center for Health and Security modeled for a release of an engineered bioweapon and ended with 150 million people dead.) It’s still not easy to create such a deadly bioweapon, “but barriers are coming down, and risks are increasing,” Lentzos said.
Barriers are coming down because of the expansion and advancement in the life sciences. There is gene editing, which has been made easier and more powerful with tools like CRISPR. A bad actor could use it to make a virus more transmissible, or more fatal, or more resistant to treatment. There is synthetic biology, which enables scientists to manipulate or even design entirely new organisms — maybe tailor-made to infect livestock, or a country’s wheat supply, or even a specific person. Then there are the computational tools, like the artificial intelligence used by Ekins where huge databases and the power of computing let scientists rapidly sift through potential pathogens much faster, or find new combinations of molecules to create entirely novel viruses.
Scientists also better understand how the body works; what regulates our hormones, immune systems, and neurotransmitters. Many experts I spoke to talked about bioregulators — systems that regulate our normal bodily functions — as a possible tool of manipulation. This knowledge has plenty of benign applications, and potentially revolutionary ones, but could also be applied for military or political manipulation: speeding up someone’s heart rate, or causing organ failure, or even altering moods, so all of a sudden an even-keeled president is an erratic one.
There isn’t really a question as to whether such an attack would fit under the BWC. Even though we were decades away from decoding the human genome when the convention was signed, its Article 1 prohibition against any deliberate use of biological material or a toxin fits under the definition.
But the larger question is whether the spread and development of these technologies incentivizes their malign use. That depends a lot on the political environment — on why a country would take the risk of breaking international law and norms. In a world where other disarmament treaties are falling away, great power competition is rising, and hybrid threats from cyber to information warfare offer the plausible deniability some governments seek, countries may start to see it as a risk worth taking.
Russia’s war in Ukraine is an example of how these dynamics are playing out. Moscow has very deliberately spread misinformation — amplified by everyone from the Chinese government to right-wingers in the US — alleging that the US has been funding bioweapons labs in Ukraine, including claiming that Washington and Kyiv have collaborated on an infection that is targeting certain groups, delivered by bats and birds. The claims have been disproven, and rejected by the United Nations Security Council, but some experts and officials fear it could serve as the basis for a false flag attack.
Biological attacks can also be difficult to verify because pathogens are naturally occurring, and even if scientists detect a new one, it’s difficult — if not impossible — to know if it’s something that has been deliberately created or something that emerged accidentally from nature or a lab. And given what Covid-19 demonstrated about the cracks in our defense against biological threats — and how little has been done to fix them over the past few years — a future bioweapon might “prey upon those existing vulnerabilities that haven’t been addressed,” said Saskia Popescu, a biodefense expert at George Washington University.
Decentralization further complicates matters, especially as the bioeconomy and biomanufacturing expands. The BWC is focused on nation-states, but this diffusion and access — again, you can buy DNA online and have it shipped to your lab — opens up opportunities for bad actors. “It’s easier for more and more people with less and less skills coming in the door to either make a pathogen from scratch or tinker with it to make it more dangerous,” said Yassif. “And that’s not contained within a few high-level labs, in a world-class lab with lots of resources. It’s increasingly democratized and distributed.”
Together, this creates a dangerous dynamic: The international bioweapons regime is basically standing still, as technology and geopolitics race ahead of it.
Can the BWC keep up?
All of this tumult spilled over at the Palais des Nations, United Nations headquarters in Geneva, this past December. There, states-parties to the Biological Weapons Convention gathered for the Ninth Annual Review Conference, or “RevCon,” as it’s known. These happen every five years, although the Covid-19 pandemic had delayed the scheduled meeting. It would ultimately complicate this one as well, as diplomats and delegates started testing positive. By week’s end, the officials presiding over the conference did so in KN95 masks — an outcome that felt a little too on-the-nose for a conference designed to shore up protections against biological threats.
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Mario Tama/Getty Images
In the Palais des Nations, a strange combination existed of low expectations and high hopes. The low expectations were mainly a hangover from the ghosts of BWC RevCon past, where states struggled to reach consensus. The war in Ukraine had also increased tensions, with Russia, in particular, playing spoiler because no one would give credence to their Ukraine bioweapons claims.
Yet many officials and experts hoped the disruptive power of Covid-19 would focus minds, providing a reminder of the threat of any kind of biological risks. New initiatives buzzed about, including ethical guidelines for scientists working in technologies that could be manipulated or misused. The Tianjin Biosecurity Guidelines for Codes of Conduct for Scientists included 10 principles for those practicing in the life sciences, an effort to raise awareness and accountability to mitigate biorisks. China, in particular, had championed these guidelines, which lots of other countries supported, too, including the United States. There were also discussions about creating a scientific or technical body, one that could review and advise on the latest biological and life science developments.
And, at long last, the United States cracked open the door to verification discussions. Ward said it was partly an acknowledgment from the Biden administration of the disruptive nature of Covid-19, but it was also an effort to move past two decades of ill will.
But that is always a tough task within international forums. The reality within the Palais was both slightly more boring and slightly more complicated. Politics played a big role in this. Russia, and some other familiar faces, including Iran used the forum to air their particular grievances — Moscow on Ukraine, Tehran on sanctions. The BWC is built on consensus — all the states-parties have to agree — so just one country can spoil the mood, and the progress.
Most of the intense discussions happened behind closed doors; out in the brightly lit conference room, the delegations discussed, line by line, exactly what should be in the RevCon text, in the most passive-aggressive public edit of all time. Countries went back and forth on word selection, striking this or seeking to add that — respectively, of course — until slowly all the add-ons and enhancements to the BWC fell away.
But, in the end, there was some progress, or as the line went: “modest success.” The hopes for adopting those ethical guidelines for scientists or even bare-bones verification measures failed. But the states-parties at the BWC agreed to establish a working group — meeting once a year, for about two weeks or so — to examine a long list of priorities, like advances in science and technology, and a possible road map for bioweapons verification.
“Issues like verification, it’s now formally in the agenda or the work plan of the intersessional program, the first time in two decades,” said Izumi Nakamitsu, the United Nations high representative for disarmament affairs.
This is what counts for progress in the world of bioweapons governance: no substantive changes yet, but at least everyone is talking. The group will meet this August for the first time, after setting its agenda last month, with the goal of transforming the BWC by the time of the next RevCon about five years from now. Which is better than nothing when it comes to weapons of mass destruction.
In the meantime, the threats to the BWC are accelerating. The world is a more dangerous and tense place. Disinformation around bioweapons is also eroding the taboo against the use. This includes Russia’s playbook of continued accusations about bioweapons in Ukraine and elsewhere. But a top Republican recently claimed, with zero evidence, that the Chinese spy balloon shot down over the Atlantic Ocean in February was equipped with bioweapons.
And maybe it doesn’t sound so crazy, as science speeds ahead. ChatGPT has amplified concerns around artificial intelligence and what it is capable of. Ekins’s software designed VX and thousands of other molecules in six hours, after all. “We’re just a small piece of the pie,” Ekins said, of the VX experiment. “But what else is happening out there?”
This reporting was made possible by a grant from Founders Pledge.