When Chechen rebels seized more than 700 hostages in a Moscow theater last October, Russian security officials must have believed they had come up with the perfect solution: They would put them to sleep. An opiate gas would be piped into the theater, clearing the way for commandos to enter, disarm the hijackers and rescue the civilians. In the end, 117 people were killed–not by the hostage-takers but by the chemical agent used by their rescuers.

In recent years, the US military has become infatuated with a variety of “incapacitating” chemical weapons, including fentanyl, the opiate believed to have been used by Russian forces. And while the use of incapacitants in Russia might have been legal under international law because it was a police action, the Pentagon’s development of what the military calls “nonlethal calmatives” appears to violate chemical weapons treaties prohibiting the military use of such agents.

Capable of taking out enemy soldiers without killing them, calmatives were once seen as ideal from a public relations standpoint. But some planners also recognized their inherent dangers: Any enemy attacked by such weapons–deadly or not–is sure to respond with whatever biological or chemical weapons it has. The detractors’ view eventually prevailed, and “incapacitating agents” were barred by an executive order signed by Richard Nixon in 1969. In 1972, the ban was solidified into international law when the United States signed the Biological and Toxin Weapons Convention (BTWC), which for the past three decades has been the cornerstone of international efforts to stop the spread of nonnuclear weapons of mass destruction. The Chemical Weapons Convention (CWC), signed in 1993 by President Clinton, went even further by banning the military use of such riot-control agents as tear gas.

But in recent years, the Pentagon has gradually turned to new and dangerously loose interpretations of international treaties that would allow the military use of incapacitating chemicals. The changes in policy amount to a “very serious assault” on the CWC, warns University of California, Davis, microbiology professor Mark Wheelis, who has written extensively on chemical and biological weapons issues. “And it is being guided by very narrow, shortsighted tactical concerns. If the United States is allowed to continue to develop [calmatives] sooner or later we are going to be employing artillery shells and aerial bombs [loaded with calmatives]. And we are going to have troops trained to use them. If the United States does this, other countries will follow suit. The long-term implications are quite profound.” According to Wheelis, it amounts to no less than “preparing for chemical war.”

The military’s current fixation with incapacitating chemicals dates back to the 1993 debacle in Somalia, when US troops battled Somalian paramilitaries in the streets and suburbs of Mogadishu. The problems created by the ambiguous military situation–when it was often difficult to distinguish between combatants and noncombatants–eventually led the Defense Department to create the Joint Non-Lethal Weapons Directorate (JNLWD) in 1997 to study alternative weapons for low-intensity conflicts.

Many of the new weapons the JNLWD has developed, like rubber bullets and twelve-gauge beanbag shotguns, seem legal and relatively innocuous by international standards. But it has also explored a variety of divergent psychoactive drugs–Prozac, Valium and Zoloft, to name a few–that have the effect of making it harder for enemy soldiers to fight in combat. Among drugs that seem to hold promise for military use are fentanyl and the anesthetic ketamine–sold illegally as “Special K,” a psychedelic similar to PCP–which, in theory, can put people to sleep without killing them, the ultimate in incapacitation.

There are, however, plenty of skeptics who question the military’s use of the term “nonlethal,” especially in light of the experience in Moscow. “There is no way known to medical science that can put a large number of people to sleep without killing a sizable percentage of them,” says Harvard biology professor Matt Meselson, one of the world’s leading experts in arms control and biological and chemical weapons. “In medicine you are dealing with one patient. You can see when he is asleep and, assuming your hand isn’t shaking too badly on the valve, you probably won’t kill him. But the military objective is different. You have to put 100 percent of the people to sleep–not 50 percent, not 70 percent–and you have to put them to sleep fast. There isn’t any way to do that effectively and safely.”

JNLWD spokesman Shawn Turner says the military has recently abandoned research on calmatives but not because of international legal issues. “It’s really been a matter of budget constraints more than anything,” says Turner. “We’ve looked at calmatives in the past, but we just don’t have the funding right now.”

Not so, says Edward Hammond, director of the Sunshine Project, an Austin, Texas-based public-interest group that deals with biological and chemical weapons issues. “The JNLWD has been fascinated by calmatives since its inception, and it is chomping at the bit to use them,” he says. Under the Freedom of Information Act, the Sunshine Project has obtained a host of interesting Pentagon documents that reveal the Pentagon’s deep and continuing attraction to calmatives, including tests on animals and possibly even human subjects. The documents also reveal an internal Pentagon debate on how to get around what is consistently described as the “challenge” of international treaties.

Research on calmatives was discontinued for several years in the early 1990s because of fears that the weapons violated existing international law. Not to be deterred, legal minds in the military came up with two arguments that exploit what they think are loopholes in the treaties, enabling them to restart R&D efforts on calmatives. And the Pentagon has tried to advance its arguments through a vigorous public relations campaign to counter what Pentagon planners have described as the “CNN factor”–media stories that might “elicit such negative public or political reactions as…that NLWs violate international treaties.”

One Pentagon document, produced after a JNLWD-led joint US and British seminar on calmatives in urban warfare, called on the United States to “continue current efforts to develop and execute a public information campaign plan.” This and other documents show an almost Orwellian obsession with language and led to debates on whether to call them “nonlethal” or “less than lethal.” Some in the military have even tossed around the term “weapons of mass protection.” This obsession with terminology has a lot to do with the fact that the Pentagon’s two arguments for the legality of calmatives are essentially semantic.

The first argument involves reclassifying calmatives as a riot-control agent. One Pentagon document from 1999 notes that “calmative and gastrointestinal convulsives, if classified as riot control agents, can be acceptable.” Other Pentagon documents suggest shifting the funding for studies of calmatives to the Justice Department or Energy Department to avoid legal problems, and that is just what has happened. A University of Pennsylvania calmatives research project, which was once funded by the Pentagon, is now being underwritten by the Justice Department, furthering the argument that they are being studied solely for use by law-enforcement agencies.

It is a rather transparent smokescreen. The head of one of the studies is the former director of the JNLWD. And numerous documents reveal that the Pentagon has developed a range of weapons capable of delivering calmative chemicals, including specialized bullets, landmines and a mortar round developed by General Electric. “It is hard to see how mortar rounds can be used in domestic law enforcement,” notes Harvard’s Meselson. Other documents show that Marine Corps officers have received training in chemical warfare doctrine by the JNLWD.

The second Pentagon argument for the legality of calmatives involves the definition of war under existing international law. Sure, incapacitants might be banned during war, goes the argument, but how do you define war? The Pentagon says the term is limited to offensive international war, which would exclude actions like the one in Mogadishu and other “peacekeeping” efforts that seek to enforce international law. Pentagon planners have put this type of mission into the nonwar category of “military operations other than war.”

“This is a description that can be applied to every conflict since World War II,” says the Sunshine Project’s Hammond. And the kind of ambiguous, low-intensity conflict that took place in the Persian Gulf and Mogadishu is just what is depicted in the various scenarios envisioned by military planners laying out appropriate uses for calmatives. One hypothetical scenario for calmative use cited by the Pentagon even involves hungry civilians rioting at a food distribution center.

John Alexander, the former head of the JNLWD and author of Future War: Non-Lethal Weapons in Twenty-First-Century Warfare, says such weapons can and should be used in any upcoming military action in Iraq–which would, in most interpretations, put the United States in the ironic position of violating the same international laws that it is ostensibly seeking to force Iraq to comply with.

“If we fight Saddam, there is a high probability this is going to take place in Baghdad,” says Alexander, who helped compile a recent report by the National Academy of Sciences that endorsed further work developing calmatives. “You know damn well he is not going to fight us in the open again. That means we are talking about tough urban combat. Imagine what the Russians faced in Grozny. Are we as a nation prepared to send troops into combat knowing that we are going to have very high casualties and also knowing that we have weapons systems like fentanyl immediately available to allow us to do the same things without taking any casualties? It doesn’t make any sense to willingly sustain casualties because some lawyer wants to sue you over treaties. The people who support the chemical treaties, they say any violation will bring about the end of the world as we know it. Even if these weapons were prohibited, the truth is we’ve got the wrong treaties to begin with. We might tap-dance around these questions at the Pentagon and at the NAS, but that is the frank answer.”

Not everyone in the Administration agrees with this kind of realpolitik or the Pentagon’s semantic dance. One high-ranking official at the State Department who deals with chemical and biological weapons issues was disturbed when confronted with the Pentagon’s arguments for the legal use of calmatives. The official, who asked not to be identified, defended the development of calmatives for law enforcement uses but was surprised when told that the military had produced a mortar round capable of delivering a chemical payload. “You apparently have more information than I do,” said the official. “This is not something that has come up for a formal intragovernmental review. But I assure you I am going to get to the bottom of it.”

Despite the reservations of some, the Pentagon’s creative legal interpretations were adopted almost verbatim by an NAS report released last October. The NAS agreed that chemical NLWs should be allowed under “legal interpretations of the [CWC] treaty indicating that it does not preclude such work or the employment of such agents in specified and increasingly important military situations.” The report noted that “the Chemical Weapons Convention prohibits the development, production, acquisition, transfer, stockpiling, and use of chemical weapons. However, the definition of chemical weapons in the CWC is critical, since it can allow for the use of some NLWs.” The report also adopted the Pentagon’s Orwellian definition of war, saying that “the United States generally interprets ‘means or method of warfare’ to mean the offensive use of force in international armed conflict.”

In some ways, the military’s development of calmatives is part of a larger, disturbing expansion of the country’s biological warfare capability. Since the Bush Administration took office, it has embraced and expanded on the Clinton Administration’s work to develop new forms of anthrax and the CIA’s replication of a Russian germ bomb, according to the 2001 book Germs by Oregonian managing editor Stephen Engelberg and New York Times reporters Judith Miller and William Broad. The Bush Administration has also made it harder to detect violations of current international law by effectively blocking an international draft agreement to create an inspections regime to enforce the BTWC last year. Negotiators from 143 countries had already agreed to strengthen the treaty, which–unlike the CWC and nuclear weapons agreements–has no real enforcement mechanisms. “The Bush Administration’s decision to walk away from the draft on the table and to reject any possible future draft was a big mistake,” says Elisa Harris, who helped shape the draft when she served as a biological weapons expert on Clinton’s National Security Council.

The Administration’s decision to back out of the agreement has raised suspicions that Washington itself has something to hide. In the wake of the September 11 attacks, Congress passed $6 billion in funding ostensibly for defensive biological warfare measures. But the line between bio-defense and bio-offense is a thin one. The scientific know-how for both is often identical. And America’s premier new bio-defense facility, being built at California’s Lawrence Livermore National Laboratory, happens to be right next door to a large fermenter capable of producing biological weapons on a massive scale.

“At every turn, whether we are talking about calmatives or bio-defense, we are acting to give the impression that we are involved in offensive biological-weapons development,” says CUNY professor Barbara Hatch Rosenberg, who chairs the Federation of American Scientists working group on biological weapons. “This will only encourage other countries to do the same, under the cover of defense, as the United States is doing. We are encouraging a biological arms race. The doctrine of pre-emption has replaced the doctrine of arms control.”