

The spying bill that's now being debated in the Senate does more than just update the Foreign Intelligence Surveillance Act – and let companies like AT&T off the hook for snooping on your phone calls and e-mails. The legislation, oddly enough, also offers a new definition for "weapons of mass destruction." It's an improvement over old attempts to define WMDs. But the term is still a mess.

Under the old FISA bill, you could eavesdrop on foreign powers (or agents of foreign powers) who were trying to engage in "sabotage" and "international terrorism." To that, the new bill adds the practice of trafficking in weapons of mass destruction as being grounds for eavesdropping.

And exactly what *are *WMDs under the new FISA bill, you ask? Let's go to Thomas, that very useful government database, and find out. Under title VII, section 110, there is the new definition:

`(1) any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;*

`(2) any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;*

`(3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United

States Code) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or*

`(4) any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.'*

Now, two things of interest leap to my attention here. First is the qualifier of "significant number of persons"

as the definition of a mass casualty incident. That's good; many discussions just default to explaining WMDs as "any chemical, biological, radiological, or nuclear weapon." Thus, you get the ridiculous examples of the FBI calling a few grams of ricin or a cylinder of chlorine a "WMD" if someone threatens to use it against the public. They don't consider quantity to be a factor in prosecuting a case. When the term "WMD" was defined by the United Nations in 1948, they specifically meant "things on the scale of an atomic bomb." No one has defined what "significant number of persons" is, though. I guess it's like pornography, you know mass casualties when you see them (100 people? 1,000? 10,000?). Again, at the least, it takes more than a few (or a few dozen) casualties to constitute a mass-casualty event (FBI, take note).

Second, see subparagraph where it says that "any explosive, incendiary, or poison gas device"? Here's where they screwed up big time, by not asking anyone with a Defense Department background for advice. The military (and arms control community) deliberately excludes incendiary devices from the definition of a chemical weapon

(and thus, would exclude incendiaries from the WMD definition). They are conventional weapons with specific guidelines (see Protocol III here).

Just because incendiary weapons use chemicals does not make them unconventional weapons, and I don't think we need to track nations or arms dealers who traffic in napalm, fuel-air explosives and flamethrowers.

I really wish they would leave explosives out, too. They are not on the scale of WMDs – again, by the UN definition, a single explosive device doesn't come close to the effect of an atomic bomb (although kudos to the Air Force for trying).

Oklahoma City was a tragedy, but it was not a WMD event, and the two planes that hit the World Trade Center on 9/11 were not WMDs – they were improvised high-explosive devices. If I had to guess, this is the work of some eager beaver who has Justice Department background and he wants to ensure that older (and inaccurate) Title 18 definitions of WMD still apply for the law enforcement community. There continues to be debate within the Defense Department about including high-yield explosives in the definition – a strategy document from the Office of the Secretary of Defense says no, the antiterrorism community says yes.

This is a significant addition, however, and I'd be very curious to find out who sponsored this part of the legislation. It is certainly an expansion of powers for the "combating

WMD" community and demonstrates that the government is still afraid of the WMD boogeyman (but not enough to get its definition straight). So, no more nuclear weapons conversations with Iranians or North Koreans on the phone. Big Brother is listening.

[Photo: White House]