U.S. researcher found guilty on 47 of 69 charges over missing plague bacteria

LUBBOCK, Texas (AP) - A jury on Tuesday found a researcher guilty of 47 of the 69 charges he faced after reporting that samples of plague bacteria were stolen from his Texas Tech University lab.

Thomas Butler, 62, closed his eyes, shook his head and appeared to fight back tears as the verdicts were read after two days of deliberations. The charges stemmed from an investigation following his report to police Jan. 14 that 30 vials of the potentially deadly plague bacteria - once known as the Black Death - were missing.

The report sparked a bioterrorism scare in this west Texas city in January, and President George W. Bush was informed of the incident.

In a statement written later, Butler said he accidentally destroyed the samples.

The professor declined to comment outside court. His attorney, Chuck Meadows, said: "We are disappointed that the jury did not acquit Tom of all the charges. We're going to analyse the jury's verdict."

How the US crackdown on bioterror is backfiring
New Scientist vol 180 issue 2420 - 08 November 2003, page 6

Vital collections are being destroyed and
scientists are abandoning research, leaving the
world more vulnerable to natural disease
outbreaks and deliberate attacks

THIS week, a respected biologist was led into a Texas
courtroom. He faces no fewer than 68 charges and
could end up in jail for the rest of his life. Has the
FBI finally caught the anthrax attacker? No. Thomas
Butler merely reported that 30 vials of plague
bacteria had gone missing from his laboratory at
Texas Tech University in Lubbock.

Many of Butler's colleagues believe the justice
authorities are making an example of him as part of
a wider effort to ensure that scientists take more
care with material terrorists might exploit.
Whatever the outcome of the case (see right), that
effort is having repercussions that go far beyond the
fate of one scientist. New Scientist has contacted
more than 20 prominent figures in the US working
in bioterror-related fields. Some refused to talk, and
most who did did not want to be named. Their
comments paint a disturbing picture.

Some scientists, for instance, are refusing to work on
projects involving agents that could be exploited as
bioweapons, even though the US government is
providing massive funding to boost such research.
Others are considering abandoning existing work.
Irreplaceable collections of microbes essential for
managing and tracing outbreaks, bioterrorist or
natural, are being destroyed simply because labs
cannot comply with the new rules.

The climate of fear created by the Butler case is even
threatening the US's ability to detect bioterrorist
activity. New Scientist has been told that labs in one
state are no longer reporting routine incidents of
animals poisoned with ricin, a deadly toxin found in
castor beans, for fear of federal investigation. And if
any terrorist ever does make off with dangerous
bacteria, it will be a brave scientist who tells the FBI.
As one put it: "I don't want to end up in a cell with
Tom Butler."

In a letter sent to the US attorney-general John
Ashcroft in September, Stanley Falkow, a respected
researcher at Stanford University in California, goes
further: "Trying to meet the unwarranted burden of
what the government considers 'biosafety' is simply
not coincident with the practice of sound, creative
scientific research."

It is now two years since someone killed five people
and created widespread disruption by posting
envelopes of anthrax around the US. Coming just
weeks after 9/11, the attacks shone a glaring
spotlight on the risks of disease research. The
authorities decided far tighter control was needed
over biologists with access to dangerous pathogens.

Their main response was last year's Bioterrorism
Preparedness and Response Act, which from
February imposed tight controls on "select agents", a
list of 82 viruses, bacteria and toxins that could be
used as weapons. The list includes the agents
responsible for many significant diseases that affect
people, livestock or plants, including foot and mouth
disease and the BSE prion that causes mad cow
disease. Even botulinum toxin is on the list, though
the medical version, Botox, is exempt from the
regulations.

People working with select agents now have to
register with the government, put their fingerprints
on record, get security clearances, and have their
labs inspected. Extensive controls have been placed
on the movement of microbes and researchers, and
all samples of select agents must be strictly
accounted for or destroyed. There were controls on
transporting some microbes before, but now
possessing them is also regulated, and
non-compliance is a crime.

The scientific community does support tighter
controls, says Ron Atlas, former president of the
American Society for Microbiology (ASM).
"Common sense as well as government regulations
dictate that the days of carrying vials of dangerous
pathogens in our pockets are gone, as are those of
leaving cultures of anthrax in open laboratories," he
says. "As scientists we must honour a pact with the
public to protect public health and defend against
bioterrorism." The ASM, together with leading
journals such as Nature and Science, last year
announced a voluntary self-censorship code that
requires crucial details that could be exploited by
bioterrorists to be removed from scientific papers.

But the regulations the US government has brought
in, and the way they are being implemented, are
driving some scientists to despair. For example, the
Centers for Disease Control in Atlanta must now
give permission to work with human pathogens,
while the US Department of Agriculture manages
livestock diseases. This ought to allow diseases such
as anthrax that affect both people and animals to be
dealt with by either agency. But in practice, some
say, one agency will tell researchers they do not have
the right paperwork, even if the other gave them
clearance.

Other rules are simply badly thought out or
inconsistent. One part of the regulations states that
clinical labs that grow new cultures of select agents
must destroy them within seven days, one researcher
complains. But another part requires labs to get
permission before destroying any cultures - and this
takes more than seven days.

Such problems leave scientists feeling that
compliance is simply impossible. "Every single lab
involved in select agents has violated the regulations
somehow," says one. "The FBI can come in and find
you out of compliance whenever it chooses." The
implications for government control of what
scientists can do or say is, in the words of one,
"McCarthy-esque".

Even when the rules are clear, complying with them
can be prohibitively expensive. One state university
had to hire five full-time police and an extra
secretary just for three moderately sized labs.
Institutions that cannot afford this are giving up
research involving select agents.

One researcher, again afraid to be quoted, had to
drop a proposal for work on ricin because it required
a collaborator with particular equipment. "None
would work on a select agent without millions of
dollars of government money, prepaid," the
researcher says. On top of the financial burden,
potential partners do not want to risk criminal
liability if they accidentally break any rules.

Meanwhile, researchers who have not been able to
meet deadlines for registering every single sample of
select agents they hold are having to destroy them.
Many labs have thousands of samples, and such
collections are important for diagnosis, drug and
vaccine testing, and for tracing outbreaks. After the
2001 anthrax attacks, for instance, one collection
helped investigators to identify the strain used.

"All clinical labs in this country have now dropped
select agents and destroyed their archive stocks,"
says one prominent researcher. Scientists at big
government labs say that smaller institutions are
appealing to them to take their collections. "We
haven't been able to save nearly enough," says one.
And the bureaucrats "are not helping".

Even military labs are not immune. "I have had to
autoclave three freezers of Venezuelan equine
encephalitis," says Peter Jahrling of the US Army
Medical Research Institute of Infectious Diseases at
Fort Detrick, Maryland, because regulators had
wanted a full account of each sample by a deadline he
couldn't meet. The disease, which can kill people and
animals, is considered a prime bioweapon candidate,
but it is also endemic in many countries in the
Americas and USAMRIID is working on a vaccine.

Until last week many researchers faced the prospect
of being excluded from their own labs, because after
12 November only people who had passed an
extensive government background check were to be
allowed access to select agents. Partly because of
initial understaffing, the FBI has not yet approved
many staff. Even government scientists who already
have high-level security clearances must get new
ones to continue working in their own labs, and yet
more to visit collaborators.

The deadline was extended last week only after
desperate appeals from four university associations
and the American Society for Microbiology. Those
who have sent in complete applications by 12
November will now have provisional approval. But
the FBI has yet to receive complete applications
from 2000 of the 9000 researchers listed as needing
clearance. Part of the problem was that the FBI sent
out the forms late, and there has been confusion
over the exact requirements.

Many of the difficulties seem to be teething
problems resulting from the introduction of a new
security culture to scientists whose work has in the
past been largely unregulated, and doing it within
very tight deadlines. But the damage could be
permanent. If the current trends continue, many
scientists will not be willing to do research that could
help protect people - in the US and elsewhere -
against natural disease outbreaks or deliberate
attacks involving the select agents.

"How could I possibly permit my students and myself
to be subject to the same nightmare [as Butler] if we
also made an inadvertent mistake?" asks Falkow in
his letter to Ashcroft. "I know this fearful feeling is
true not only of American scientists but also of
colleagues from abroad... You have your regulations
but I believe you will have fewer knowledgeable
scientific practitioners of infectious diseases
research."

"If I am required to inventory every vial, even if it is
in a locked freezer behind five layers of security,
then be held criminally accountable for any
mysterious disappearance when it is almost certainly
only sloppy record keeping," says another researcher,
"then I'll work on Paramecium [a pond protist] and
leave the select agents to someone else."

The butler case

In January this year, Thomas Butler, the head of
infectious diseases at Texas Tech University,
reported that 30 vials of Yersinia pestis, the
bacterium that causes bubonic plague, had gone
missing from his lab. He feared they had been
stolen. On 15 January, after 60 police agents had
searched the campus, and after hours of
interrogation, Butler stated that he had in fact
destroyed the vials. Butler says FBI agents urged
him to say this to reassure the public.

But they then arrested him, accusing him of lying
about the theft. Since then, the FBI has also
charged that Butler transported Y. pestis without a
permit within the US, and to and from Tanzania.
Other charges relate to irregularities in his taxes
and grants. The 62-year-old now faces 68 charges
and a maximum sentence of more than 100 years.
After a lifetime devoted to fighting plague, after he
watched a five-year-old Vietnamese boy die of it in
1969, Butler feels "tricked and deceived" by the
authorities.

Only a few scientists are prepared to express their
concerns publicly. "I am worried that Butler is
being dealt with unusually harshly in order to make
a more dramatic statement to scientists," the
smallpox expert D. A. Henderson, who is special
adviser to the US Secretary of Health, told New
Scientist. The National Academy of Sciences has
called the case "troubling", while the Federation of
American Scientists is concerned that the
government is "prosecuting this case in a manner
that is grossly disproportionate to the offences that
have been alleged".

One of the reasons scientists feel Butler's
treatment is too harsh is that Y. pestis, like many of
the select agents (see "The select agents"), is not a
hard-to-obtain pathogen. Would-be bioterrorists
need not even go outside the US to get it: plague is
endemic in prairie dog colonies, and more than a
dozen people in the US develop the disease each
year.

Privately, scientists tell chilling tales of being
warned by justice officials not to comment on the
case. They report the officials as saying that Butler
is "going down" as a warning to other scientists.
Some say they suspect Butler's treatment stems
from the FBI's frustration at not having caught the
2001 anthrax attacker, who the agency suspects was
an American scientist with access to pathogens -
like Butler.

The select agents

Scientists in the US now have to follow strict
regulations if they work with any of 82 pathogens
or toxins, including:

Human diseases and toxins

Ebola virus

Tick-borne encephalitis viruses

Shiga toxin

Anthrax bacterium

Eastern equine encephalitis virus

Rift valley fever virus

South American haemorrhagic fever viruses

Animal diseases

African swine fever virus

Highly pathogenic bird flu virus

BSE prion

Foot and mouth disease virus

Newcastle disease virus

Rinderpest virus

Plant diseases

Citrus variegated chlorosis bacterium

Rice blight fungus

Potato bacterial wilt

Debora MacKenzie

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