HR 7190 Introduced

Fentanyl as WMD

Earlier this month, Rep Boebert (R,CO) introduced HR 7190, the Fentanyl is a WMD Act. The very short (two sentences) bill would require the DHS Assistant Secretary for the Countering Weapons of Mass Destruction (CWMD) Office to “treat illicit fentanyl as a weapon of mass destruction for purposes of title XIX of the Homeland Security Act of 2002” (6 USC 590 et seq). No spending is authorized by this legislation.

Weapons of Mass Destruction

The term WMD as used in the CWMD subchapter is defined {§590(4)} by reference to 50 USC 1801(p). That definition is comprised of four parts referencing different types of weapons by their effects. The paragraph of interest here is paragraph (2):

“(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;”

While it may be appropriate to quibble about whether the term ‘weapon’ should be applied to a street drug, it is clear that it takes no stretching of language to conclude that fentanyl has the capability to “cause death or serious bodily injury to a significant number of persons through the release, dissemination [emphasis added], or impact of toxic or poisonous chemicals”

CWMD Actions

Unfortunately, the CWMD Office as currently established in statute is predominately concerned with nuclear WMD in all their diversity. The mission of the Office is outlined in §592(a):

“The Office shall be responsible for coordinating Federal efforts to detect and protect against the unauthorized importation, possession, storage, transportation, development, or use of a nuclear explosive device, fissile material, or radiological material in the United States, and to protect against attack using such devices or materials against the people, territory, or interests of the United States and, to this end, shall—”

As a practical matter the Office (according to the DHS web site) currently sees itself as having a more expansive mission of leading “DHS efforts and coordinat(ing) with domestic and international partners to safeguard the United States against CBRN [chemical, biological, radiological and nuclear] threats.” As best as can be determined from that site, the non-nuclear threat portion of the mission is currently limited to the controversial (for the limits of its effectiveness) BioWatch program.

The current authorization for the CWMD Office expired on December 21^st, 2023. The House passed HR 3224, the Countering Weapons of Mass Destruction Extension Act of 2023, on December 11^th, 2023. That bill would amend and extend the current authorization of the DHS CWMD Office for seven years. It has not yet been taken up by the Senate, and there is a good chance that the Senate will not act this session. A separate bill introduced in the Senate (S 1978) would reauthorize and expand the CWMD Office to officially include a more well rounded CBRN focus, but Ranking Member Paul (R,TN) opposes the bill so it is unlikely to move forward.

Moving Forward

Boebert is not a member of the House Homeland Security Committee to which this bill was assigned for consideration, nor are any of her eleven cosponsors. This means that there is likely insufficient influence to see the bill considered in Committee. I would expect there to be significant bipartisan opposition to the bill were it to be considered.

Commentary

While fentanyl may broadly fall within the scope of the definition of the term ‘weapon of mass destruction’, there is nothing within the current scope or mission of the Countering Weapons of Mass Destruction Office that would help the federal government reduce the flow of that drug into this country. Either the sponsors of this bill are unaware of the mission of the CWMD Office, or this legislation is just another bit of political grandstanding. In my opinion, while I would not be surprised at these particular congresscritters being uniformed, I suspect the latter.