In 2004, Congress enacted an ambiguously-worded statute that made it a crime to produce, possess, or use the variola virus (which causes smallpox) or any derivative of it that has more than 85 percent of the variola gene sequence.
Scientists were alarmed because the statute could be read to prohibit possession of other viruses that are used in research, and to compromise the development of vaccines. The National Science Advisory Board for Biosecurity, which advises the Secretary of Health and Human Services, recommended that the statute be repealed.
But it wasn’t repealed. Instead, it was “interpreted” by the Justice Department Office of Legal Counsel (OLC) to eliminate the problem. The OLC opinion (pdf), published by the Justice Department this week, said that the prohibition extends only to viruses that cause smallpox and those that are deliberately engineered by human manipulation of the smallpox virus itself. The vaccine developers and other scientific researchers were off the hook.
No sensible person would be likely to object to the conclusion reached by OLC. What seems problematic, however, is the interpretive process and the quasi-legislative authority that OLC now has to define and redefine the terms of existing laws. In this case, OLC interpretation was the functional equivalent of statutory amendment or repeal. And though unclassified, the July 2008 OLC ruling remained unpublished for several months. One can only imagine what OLC may be doing in classified areas.
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