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BIOLOGICAL WEAPONS CONVENTION PROTOCOLS:

STATUS AND IMPLICATIONS

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY,

VETERANS AFFAIRS AND INTERNATIONAL

RELATIONS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

JULY 10, 2001

Serial No. 107–98

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

——— ———

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

ROBERT A. BRIGGS, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON NATIONAL SECURITY, VETERANS AFFAIRS AND INTERNATIONAL

RELATIONS

CHRISTOPHER SHAYS, Connecticut, Chairman

ADAM H. PUTNAM, Florida

BENJAMIN A. GILMAN, New York

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEVEN C. LATOURETTE, Ohio

RON LEWIS, Kentucky

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

DENNIS J. KUCINICH, Ohio

BERNARD SANDERS, Vermont

THOMAS H. ALLEN, Maine

TOM LANTOS, California

JOHN F. TIERNEY, Massachusetts

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

——— ———

——— ———

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

LAWRENCE J. HALLORAN, Staff Director and Counsel

ROBERT NEWMAN, Professional Staff Member

JASON CHUNG, Clerk

DAVID RAPALLO, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on July 10, 2001 ............................................................................... 1

Statement of:

Mahley, Donald A., Special Negotiator, Chemical and Biological Arms

Control, Department of State; Edward Lacey, Principal Deputy Assistant, Secretary of State for Verification and Compliance, Department

of State; and James Leonard, former U.S. Ambassador, United Nations

Conference on Disarmament ........................................................................ 49

Letters, statements, etc., submitted for the record by:

Lacey, Edward, Principal Deputy Assistant, Secretary of State for Verification and Compliance, Department of State, prepared statement

of ..................................................................................................................... 59

Leonard, James, former U.S. Ambassador, United Nations Conference

on Disarmament, prepared statement of .................................................... 69

Mahley, Donald A., Special Negotiator, Chemical and Biological Arms

Control, Department of State, prepared statement of ............................... 51

Shays, Hon. Christopher, a Representative in Congress from the State

of Connecticut:

Prepared statement of ............................................................................... 3

Prepared statement of Mr. Pearson ......................................................... 16

Prepared statement of Mr. Toth .............................................................. 6

(1)

BIOLOGICAL WEAPONS CONVENTION

PROTOCOLS: STATUS AND IMPLICATIONS

TUESDAY, JULY 10, 2001

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL SECURITY, VETERANS

AFFAIRS AND INTERNATIONAL RELATIONS, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m., in room

2154, Rayburn House Office Building, Hon. Constance A. Morella

(chairwoman of the subcommittee) presiding.

Present: Representatives Shays, Putnam, Otter, Schrock,

Kucinich, and Tierney.

Staff present: Lawrence J. Halloran, staff director and counsel;

R. Nicholas Palarino, senior policy advisor; Robert Newman and

Thomas Costa, professional staff members; Alex Moore, fellow;

Jason M. Chung, clerk; Kristin Taylor, intern; David Rapallo, minority counsel; and Earley Green, minority assistant clerk.

Mr. SHAYS. A quorum being present, the Subcommittee on National Security, Veterans Affairs and International Relations hearing entitled, ‘‘Biological Weapons Convention Protocol: Status and

Implications,’’ is called to order.

In the biological convention, BWC, the United States and 158

signatory nations pledge never, in any circumstance, to develop,

produce, stockpile or otherwise acquire or retain biological agents

or toxins for other than peaceful purposes.

But the disclosure of a vast Soviet bioweapons arsenal, continuing efforts by Saddam Hussein to acquire weapons of mass destruction and transnational terrorists’ growing interest in what some

call the poor man’s atomic bomb, have amplified demands for more

tangible means to monitor, and if necessary, enforce that pledge.

Other arms control treaties limit the production or possession of

inherently destructive materials, like missiles and bombs. The

BWC prohibits wrongful purposes on the part of those who produce

and possess microbes and materials easily converted from humanitarian to inhumane uses.

So efforts to strengthen the BWC must confront the inherent difficulty of policing and enforcing a ban on bad intentions. Discussions have been underway in Geneva since 1995 on a compliance

regime, or protocol, to increase confidence in the fundamental

promise of the BWC, but agreement on a binding set of procedures

has proven elusive.

Recently, the chairman of the negotiating body, Ambassador

Tibor Toth offered a composite draft protocol in an effort to resolve

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critical issues that stalled the talks. He hopes to present a final

consensus document to the BWC review conference in November.

But it appears serious questions remain whether this, or any, protocol can yield more than political or symbolic benefits while imposing very real and substantial costs.

On June 5th, we heard testimony from a panel of experts on the

process and product of the BWC protocol negotiations. Witnesses

testified on the potential benefits of the declaration and inspection

regime being considered. They discussed the risks to national security facilities and private proprietary information under a broad intrusive system of filings and onsite activities modeled after the

chemical weapons convention. We heard that the previous administration suffered internal policy conflicts that limited potential U.S.

impact on the BWC negotiations.

Today we hear from the current administration. At the request

of the White House, State Department testimony scheduled for

June 5th was postponed pending completion of a high level policy

review of the BWC protocol. It seems that review is still not complete, but U.S. reservations about the pending protocol are beginning to come into sharper relief.

This afternoon, State Department negotiators, past and present,

will elaborate on the substantive benefits and verification standards that should be reflected in any BWC protocol.

The subcommittee appreciates the testimony of all our witnesses

as we continue our oversight of biological defense and counter-proliferation programs.

At this time, I’d like to recognize the vice chairman, Mr. Putnam,

for any statement.

[The prepared statement of Hon. Christopher Shays follows:]

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Mr. PUTNAM. Thank you, Mr. Chairman. I appreciate the cooperation of the administration in joining us with their testimony.

This will be an outstanding complement to our first hearing on the

topic where we heard from outside witnesses. I look forward to this

additional testimony. I thank you for reconvening this topic.

Mr. SHAYS. I thank the gentleman. I also thank him for chairing

so many of the other hearings. And I will be leaving probably in

the midst of this hearing, and Mr. Putnam will continue. Mr.

Schrock, I would—thank you.

We are fortunate to have an outstanding panel, and it is one

panel. Ambassador Donald A. Mahley, Special Negotiator for

Chemical and Biological Arms Control, Department of State; Dr.

Edward Lacey, Principal Deputy Assistant Secretary of State for

verification and compliance, Department of State; Ambassador

James Leonard, former U.S. Ambassador, United Nations Conference on Disarmament.

Gentlemen, as you know, we swear in our witnesses. And I would

ask you to stand and raise your right hands, please.

[Witnesses sworn.]

Mr. SHAYS. Note for the record that all of our witnesses have responded in the affirmative, and gentlemen, before I call on you, I

just want to take care of some housekeeping. I ask unanimous consent that all members of the subcommittee be permitted to place

an opening statement in the record and that the record remain

open for 3 days for that purpose. Without objection, so ordered.

I ask further unanimous consent that all witnesses be permitted

to include their written statements in the record. And without objection, so ordered.

Do we have anything to submit? We’ll submit them later. Now

are we starting with Ambassador Mahley? And then we’ll go to

you, Dr. Lacey and then Ambassador Leonard. You know, if I

could, I do have—if I could, I ask unanimous consent the following

be included in the hearing record: Testimony of Ambassador Tibor

Toth, chairman of the Ad Hoc Group of State parties to the Biological Weapons Convention urging all State parties not to dismiss the

opportunity to strengthen the biological weapons convention, various correspondence to and from representatives of the ad hoc

group of the State parties concerning their participation in the

hearing.

[The prepared statement of Mr. Toth follows:]

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Mr. SHAYS. I ask unanimous consent the following letters, faxes,

and testimony be included in the hearing record: Letter, testimony

and enclosures of Professor Graham S. Pearson, visiting professor

of international security, University of Bradford, Department of

Peace Studies stating the BWC protocol would help prevent the

spread of biological weapons. And without objection so ordered.

[The prepared statement of Mr. Pearson follows:]

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Mr. SHAYS. Ambassador you’re on, and welcome. You have a

great voice, but I’m going to have you do what I have to do, turn

on the mic, and I’m going to ask you to pull it a little closer to you.

Mr. MAHLEY. Does that work?

Mr. SHAYS. That works. It makes me feel good to tell you something to do here. Gives me a sense of authority.

STATEMENTS OF DONALD A. MAHLEY, SPECIAL NEGOTIATOR,

CHEMICAL AND BIOLOGICAL ARMS CONTROL, DEPARTMENT

OF STATE; EDWARD LACEY, PRINCIPAL DEPUTY ASSISTANT,

SECRETARY OF STATE FOR VERIFICATION AND COMPLIANCE, DEPARTMENT OF STATE; AND JAMES LEONARD,

FORMER U.S. AMBASSADOR, UNITED NATIONS CONFERENCE

ON DISARMAMENT

Mr. MAHLEY. Thank you, Mr. Chairman. It is my great pleasure

to reappear before you today to discuss the current state of play in

the ongoing negotiations for protocol to the Biological Weapons

Convention. I have prepared a written statement, and as you indicated before, I would, of course, like that to be incorporated into

the record. I am not going to try to bother to read the entirety of

it, but you had asked whether or not there were—what kind of substantial benefits and verification benefits might be expected from

this protocol. In that respect, I, of course, will defer on the question

of verification to my colleague, Dr. Lacey, who deals with that very

specifically.

But let me simply say that it has been the U.S. objective

throughout these negotiations to, No. 1, make sure that we always

had reaffirmed the U.S. underlying commitment to the Biological

Weapon Convention. And I want to make sure we specify the difference between the convention and the protocol. The protocol is an

addition to the Biological Weapons Convention. And as such, it is

forbidden by its own mandate from modifying, or otherwise changing the basic obligations of that convention. And the obligations of

that convention, which the United States fully supports, do indeed

remain fully in force, and that is, as you indicated in your opening

statement, that there shall not be offensive biological weapons in

the world.

Now in doing that, we believe that a protocol to that convention

ought to provide, to the greatest extent that it can, some additional

transparency and some additional confidence that countries are

complying with the obligations which they have undertaken as parties to that convention. As such, we therefore would like to be able

to have a system by which we could call into question any issues

that one had brought up, and we would like to have a system in

which we could confirm those kinds of concerns that we had developed.

The substantive difficulties that the United States has had with

this negotiation throughout, and that we continue to have, even

with the composite text that the chairman has presented, lie in the

questions of whether those objectives can be or are achieved by the

kind of protocol that we have before us. And indeed it is exactly

those kind of substantive difficulties that we still challenge in

terms of the state of the negotiations, whether we get those benefits. Other things that I think—and you heard this in the testimony

50

in June from expert witnesses—that certainly has governed our approach to the negotiations, are that it should do no harm. And in

doing no harm, we believe that it is doing no harm to the underlying principles of the convention itself. That is to say, if there is a

situation where some countries are attempting to undercut other

parallel mechanisms that are existing to try to get at the question

of biological weapons proliferation, in this case, I refer to export

controls, allowing the protocol to undercut that kind of a thing,

would indeed be to undercut the convention itself, that, we believe,

is an unsatisfactory outcome and not one that the United States

should support.

So it’s that combination of what we’re after in this negotiation,

something that will enhance our ability and confidence that people

are complying with convention, and something that will studiously

avoid undercutting either the convention itself or any other parallel

mechanisms in the world that are currently extant to try to address the threat of biological weapons.

I would stop at that point in terms of my opening oral statement,

Mr. Chairman, and ask that my written testimony be read into the

record. Thank you very much.

[The prepared statement of Mr. Mahley follows:]

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Mr. SHAYS. Thank you, Ambassador. Your presentations are always very clear and helpful. Thank you.

Dr. Lacey.

Excuse me I’ll use this opportunity to introduce Dennis Kucinich,

who is the ranking member of this committee, and Mr. Tierney,

both who have been wonderful participants in the National Security Committee. And if you all would like to make a statement, I

would be happy to recognize you before recognizing Dr. Lacey.

Shall we just go through?

Mr. KUCINICH. I’ll include my statement in the record.

Mr. TIERNEY. I’ll do the same.

Mr. SHAYS. Both gentlemen’s statements will be included in the

record. I thank you for that.

Dr. Lacey, you’re on.

Mr. LACEY. Thank you, Mr. Chairman. It is an honor to address

the subcommittee today on the issue of the negotiation of a protocol

to the Biological Weapons Convention [BWC]. Ambassador Mahley

has already addressed his remarks to the status of the negotiation

and U.S. policy with respect to the negotiations. This is it my first

opportunity to address this committee, so I will say a few more

words, then my distinguished colleague, but I will focus——

Mr. SHAYS. Let me say, we should feel welcome. We just have

one panel. We’ll time you for 5 and roll it over for another 5. And

that also, Ambassador, will be the case. So make your presentation.

Happy to have you do it.

Mr. LACEY. Thank you, sir. Unlike Ambassador Mahley, I will

focus exclusively on the issue of verifiability and specifically whether any protocol would improve the verifiability of the Biological

Weapons Convention. The BWC is inherently difficult to verify. The

problem stems from the language of the Convention, which hinges

on intent and the nature of biology and biological weapons. Any

protocol must grapple with these inherent verification problems.

The BWC does not establish a formal international mechanism

for verifying compliance. Rather, it relies upon self-policing by the

States’ parties to the Convention. If a State party identifies a compliance breach by another State party, it may pursue this concern

through bilateral consultations, or it may lodge a complaint with

the U.S. Security Council, which, in turn, may initiate an onsite investigation.

In practice, this self-policing system labors under two fundamental limitations. First, assessing compliance with the BWC requires

detailed information on the intent of biological programs and activities. The BWC prohibits the development, production, stockpiling,

and acquisition of biological agents and toxins for hostile purposes,

but it does not prohibit such activities if conducted for peaceful

purposes. In fact, the BWC not only allows peaceful work utilizing

the very substances that it was designed to control, it encourages

such peaceful applications.

Since almost all biotechnology activities are dual use in nature,

both they and the facility at which they are conducted could be

used for legitimate purposes or for offensive biological warfare purposes. This requires a judgment as to whether the intent of a dualcapable activity is legitimate or illicit. Intent is very difficult to deVerDate 11-MAY-2000 11:15 Oct 28, 2002 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 C:\DOCS\81592.TXT HGOVREF1 PsN: HGOVREF1
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termine and typically requires detailed information from sources

who had direct knowledge of the purpose of a program.

National intelligence, such as from human sources, is essential

to detect violations of the BWC. However, such information is often

very difficult to collect.

The second limitation is that the nature and scale of biological

weapons activities preclude readily identifiable external signatures.

Whereas many tons of chemical agent are needed for a militarily

significant chemical warfare capability, a comparable biological

warfare capability would be measured in pounds of the agent. Furthermore, the equipment needed to produce such amounts of biological agent could be housed in a relatively small space inside a

building without specific distinguishing features. Given the potentially small scale and unremarkable features of biological production, the physical signatures that aid us in verifying compliance are

simply not present for biological weapons. In the absence of physical signatures, once again it is necessary to acquire detailed information from sources which had direct knowledge about the location

and nature of illicit biological warfare activities.

These two fundamental considerations virtually preclude the

achievement of an effective international verification regime. An

international BWC organization would not be able to collect the detailed intelligence information essential for uncovering illicit intent.

Moreover, the absence of external signatures at biological warfare

facilities makes it impossible to identify all of the facilities capable

of conducting illicit BW activities so that they could then be made

subject to declaration and routine inspection.

As a consequence, a protocol would not improve our ability to effectively verify compliance with the BWC, either in terms of certifying that a country is in compliance with, or in violation of, its obligations.

The U.S. Government has consistently recognized the inability of

any protocol to improve the verifiability of the BWC. This position

was reaffirmed by the previous administration before the negotiations began in 1995. Instead, the goal established by the previous

administration was to promote measures that would provide some

degree of increased transparency of potential biological weapons-related activities and facilities. I will refrain from commenting on the

level of transparency achieved in Chairman Toth’s composite text

and the potential value of that transparency.

Instead, let me provide my views on the key components of the

chairman’s text: National declarations, visits and challenge inspections. And let me explain why these measures would not improve

the verifiability of the Biological Weapons Convention itself. The

chairman’s text would require annual national declarations of biological activities in the following areas: Biodefense, maximum and

high containment laboratories, work with listed agents and toxins,

and micro biological production facilities. The criteria for declaration are, of necessity, highly selective and as a result, only a small

fraction of the pool of facilities in a country that could potentially

be used for offensive biological warfare purposes would be declared.

It is simply impractical to declare all potential dual capable facilities, as these would encompass countless legitimate enterprises

such as beer brewers, yogurt makers and many academic laboraVerDate 11-MAY-2000 11:15 Oct 28, 2002 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 C:\DOCS\81592.TXT HGOVREF1 PsN: HGOVREF1
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tories. Furthermore, it is a certainty that States conducting offensive biological warfare activities will either not declare such facilities or will embed illicit activities at declared facilities beneath an

effective cover of legitimate biological activities.

The chairman’s text also provides for an annual series of socalled, randomly selected transparency visits to declared facilities.

As their name suggests, these visits are intended to enhance transparency and not to improve our ability to verify compliance or noncompliance with the Convention. These visits are directly tied to

the annual declaration submission, and therefore, suffer from the

same verification failings. Only a small fraction of the facilities declared as potentially relevant to conducting offensive biological

warfare activities would be subject to visits on a random basis.

Even at visited facilities, illicit biological warfare work could be

easily concealed or cleaned up, rendering it highly improbable that

international inspectors would detect evidence of noncompliance.

Moreover, violators could remove any risk associated with such visits by engaging in illicit biological warfare activities at non-declared facilities.

Finally, the chairman’s text establishes a challenge investigation

mechanism for addressing violations of article 1 of the BWC, the

central prohibitions of the Convention. There are two types of challenge inspection in the chairman’s text. The first type is a facility

investigation conducted at a particular facility to address concerns

that facility is engaged in biological warfare activities prohibited by

the Convention. The second type is a field investigation of the release or exposure of humans, animals or plants to biological agents

or toxins in violation of the Convention. Field investigations encompass allegations of biological weapons use and in addition, concerns

about an accidental release of biological agents or toxins or suspicious outbreaks of disease connected to prohibited biological warfare activities.

Generally challenge inspections could help to defer cheating.

However, they have inherent limitations. The inherent delay in securing approval for an investigation request from the implementing

organization, and in getting an investigative team physically on the

ground, would likely permit more than enough time to clean up or

otherwise conceal evidence of a BWC violation.

In addition, the dual capable nature of biological activities and

equipment could readily be exploited by a violator to explain away

any concerns with managed access rights available as a last resort

to deny access to any incriminating evidence.

Let me sum up. Regardless of whatever transparency value a

protocol to the Biological Weapons Convention might provide, it

would not improve our ability to verify compliance with the BWC.

The dual capable nature of biology and the advance as well as the

worldwide spread of biotechnology have conspired to make the

BWC not amenable to effective verification, especially by an international organization. It is possible to determine that a country is

conducting an offensive biological weapons program. In fact, after

years of compiling intelligence information, the United States established that the Soviet Union, and subsequently Iraq, were engaged in such activities. National intelligence is essential to detect

BWC cheating. U.S. efforts to strengthen the verifiability of the BiVerDate 11-MAY-2000 11:15 Oct 28, 2002 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6633 C:\DOCS\81592.TXT HGOVREF1 PsN: HGOVREF1
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ological Weapons Convention should always proceed from that fundamental reality. Thank you, Mr. Chairman.

Mr. SHAYS. Thank you, Dr. Lacey. I’m going to thank you for not

raising a protocol issue of whether someone who is an active employee of the government should be at the same panel with someone who is a former employee. Sometimes we encounter that. And

that endears you to me that you haven’t done that.

[The prepared statement of Mr. Lacey follows:]

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Mr. SHAYS. Ambassador Leonard, it’s great to have you here as

a full participant in this panel. We really welcome your participation and thank you for being here. You have the floor for 10 minutes.

I need you to turn that mic on. Maybe get it a little closer to you

as well.

Mr. LEONARD. I think that’s on now.

Mr. SHAYS. Yeah but put it a little closer to you. Thank you very

much. Is that OK?

Mr. LEONARD. Yes, fine.

Mr. SHAYS. We have a light for you. It will turn red at 5, and

then we’ll let it go another 5.

Mr. LEONARD. Thank you very much, Mr. Chairman. First of all,

Mr. Chairman, may I say that I can’t disagree with a word that

Ambassador Mahley said with regard to the commitment of the

United States and of the Bush administration to the Biological

Weapons Convention, and to the desire to do no harm to the underlying treaty that this protocol would be attached to. And I certainly

share that outlook. The objective of adding transparency and adding some degree of confidence is one I think we can all share.

I do, however, disagree with several of the points that were made

by Dr. Lacey. And before giving my prepared testimony, perhaps I

could just note those briefly. First of all, Dr. Lacey suggested that

the problem arises because the Biological Weapons Convention

hinges on the intent of the government that is being considered.

Mr. SHAYS. He’s just lowering it a bit.

Mr. LEONARD. That it hinges on intent. That criterion of intent

is as to what is legitimate and what is prohibited is also characteristic of the Chemical Weapons Convention and the Nonproliferation Treaty. Both of those are, I think, reasonably well

verified. That’s not to say that the BW Convention is not more difficult. It certainly is much more difficult. But it’s not that criterion

of intent that is the problem, nor is it the fact that the biological

technology, biotech, is dual-capable, both nuclear science and chemistry are inherently dual-capable in their character. And yet, we

have developed ways in both connection with the MPT and the

Chemical Weapons Convention to deal with those problems in a

relatively satisfactory way. That leaves, however, the problem that

BW is much more difficult. And I don’t wish to deny or pretend

that’s not the case.

With regard to the basic question would the completion of this

negotiation and bringing into force a protocol along the lines of the

one that has been submitted by the chairman of the ad hoc group,

would that be in the national interest? Would that enhance our security? And I want to say that I think very clearly it would. This

doesn’t mean, of course, that the protocol is perfect. And there are

many elements of it that even in the—after 7 years of negotiation

still are in question and could be improved. But the—as one works

a treaty, the successive drafts of it get better and better in terms

of being more and more acceptable to a larger segment of the international community. And when the final treaty is done, of course

it will still have flaws in it, but it will be something that is considered by a strong consensus of the international community to be

better than no treaty at all, which is what we have today.

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In one sense, of course, a treaty has to meet an even more demanding standard, because it generally is accustomed to ask that

we get close to unanimity from the international community before

a treaty is sent up to the general assembly in New York for endorsement and back to governments for ratification.

Now what are these potential benefits to our security? There’s no

need, I think, to argue with this committee the danger of BW. You

have much more expert witnesses than I who can attest to that.

I think it’s enough to say that the potential damage to the United

States is comparable to what nuclear weapons could do to the

United States. And any reduction of that threat is obviously desirable unless the reduction, the measures to reduce the threat, entail

some larger danger to our security; for example, making us less

able to defend ourselves or less able to respond appropriately to an

attack.

Now defense against BW is almost entirely a matter for each nation’s health system, and there is nothing in the draft protocol that

would, in any way, impair or impede the development of our defenses against biological weapons. In fact, working with other governments should enhance our own individual efforts.

On the question of how the United States would respond if we

were attacked with biological weapons, that certainly would be a

problem of great moment for any President. But there is nothing

whatsoever in the protocol that would limit the President’s options

in any way. I have noted that we long ago renounced one option,

that of retaliation in kind, when we gave up our own biological

weapons.

Now, why do I think the draft protocol would serve to reduce the

BW threat? Would it, for example, enable us to be confident that

we could detect in advance a clandestine BW program anywhere in

the world so we would then take preemptive action against it?

Would the certainty of detection be sufficient to deter anyone from

even contemplating a clandestine BW program? The answer to both

questions clearly is no, absolutely not.

So if we can’t deter and we can’t detect with high confidence,

what use is this protocol? Isn’t that what a verification protocol is

supposed to do? Well, let me first note, as Ambassador Mahley and

Dr. Lacey have pointed out, that this is—the United States has,

from the beginning, refused to call this a verification protocol. I

think that has been correct to do so. The word ‘‘verification’’ can

be defined in many ways, but it’s common to say that verification

could never be 100 percent, but if we’re talking about a verification

protocol, then we should have something that gives us substantial

confidence that cheaters will be caught. And that is inherently extremely difficult in the BW field. It’s not impossible, as we thought

in 1970 and 1971 when we were doing the Biological Weapons Convention itself. But it surely is difficult. Even an intrusive protocol

would not give us high confidence and the draft protocol is less intrusive, less demanding of potential parties than it should be.

Now, if high confidence is not attainable, does that mean the protocol would have zero deterrent value? Again, I think the answer

is of course not. Cheaters would naturally try to hide a BW program. They would try to hide it in an undeclared facility or in a

large legitimate plant. But could they be totally confident that they

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could not be discovered? Would they be certain that no defector

would emerge with incriminating information or perhaps even

bringing samples. Of course they could not. Evaluating deterrence

requires us to look at the matter not just from our viewpoint but

also from the perspective of a government contemplating either the

development of a BW program or the retention of an illicit BW program. I think such a government would simply not join the protocol

rather than trying to outsmart the protocol’s confidence-building

regime.

Moreover, we’re assisted by an interesting fact, that there’s a

widespread belief that the United States is omniscient and omnipotent. We know we are neither one of those. But I’m very glad to

have our enemies think we’re both. Caution and prudence on our

side as to what we can—a verification system can deliver is very

appropriate. But potential violators will tend to exaggerate and

fear our capabilities. Seen in this light, a BW convention which has

no verification provisions stands as a kind of open invitation to do

BW while a BW convention with a protocol even if it’s in our view

rather weak, is a substantial deterrent.

Now what about terrorist groups? A treaty is after all an agreement among governments and terrorists are not invited to join to

say the least. A key question is whether terrorists could develop a

serious BW capability without help from any government. This

question is much debated and I’m not an expert on it. I would urge

you to get expert testimony. But I think it should be clear that a

minor, modest, small BW capability could be done by almost anyone, in a kitchen as it is often said. But a large BW capability of

the type that could devastate a major city that I would suggest is

something quite different, and there, I think, assistance and support from a government is likely to be essential to a terrorist group.

However that may be, there is no disagreement on two points related to terrorism. One is that a group will be far more dangerous

if it has even rather modest help from the government. And second,

past BW programs like that in the former Soviet Union could provide invaluable assistance and invaluable expertise and pathogens

to terrorists if there were to be leakage from them. The draft protocol has the potential to be helpful on both points. On both points,

since the protocol is among governments, any government that

helps a terrorist group or even a government that fails to uncover

and prosecute a terrorist group would be violating its commitments. That responsibility to seek out and eliminate BW activity

on its territory can only be a net plus for us and everyone else in

the struggle against BW terrorism.

Mr. SHAYS. I would ask you just to conclude your testimony, if

you would.

Mr. LEONARD. Has that been the 10 minutes?

Mr. SHAYS. It’s gone by faster than you realize, actually. We are

almost into 11 minutes. If you could spend 1 more minute if you

could summarize.

Mr. LEONARD. Very well. In this connection, I want to point out

the most dangerous reservoir of BW expertise anywhere in the

world is in the former Soviet Union. And I think that the protocol

would assist us in moving to deal with that.

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One final point, if I may, Mr. Chairman, the protocol is not satisfactory to anyone, but I think it’s very clear that to our European

friends who have invested the most effort and so on in this, they

believe that the draft protocol provides a basis for the final stage

of negotiations. I have here a copy of a demarche that the European union delivered to the State Department recently. Be glad to

make that available. And I think that underlines how strongly our

allies in Europe feel about this matter and how much they want

negotiations to move forward. Thank you, Mr. Chairman.

Mr. SHAYS. Thank you very much, Ambassador.

[The prepared statement of Mr. Leonard follows:]

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Mr. SHAYS. Well, first let me recognize Congressman Otter is

here and appreciate you being here. And we’re going to proceed to

questions. We’ll start with Mr. Putnam and then we’ll go to Mr.

Kucinich.

Mr. PUTNAM. Thank you, Mr. Chairman.

Dr. Lacey, the premise of your testimony, as I understand it, was

that sound intelligence is our first line of defense and that whatever transparency value may be derived from the protocol, it’s undermined by the inherent inability to conduct sound verification of

compliance or noncompliance. Is it your position that this protocol

moving forward would be of no value, or is it your position that it

would actually be counterproductive and could be used against the

United States?

Mr. LACEY. Congressman, I think you captured my statement

fairly accurately. My position, and I believe the executive branch’s

position, is that there is no benefits in terms of verifiability of the

BWC. That this protocol, or quite frankly, any protocol that we can

envision, would not enhance our ability to verify compliance with

the BWC. We are not—I am not taking a position on the potential

transparency or other benefits of the protocol. There may very well

be other benefits to the protocol. That’s not my purview. But this

administration, the previous administration, and the administration before that, have consistently stated our view that we did not

envision a protocol as a way to make the BWC effectively verifiable. And we have stood by that.

Mr. PUTNAM. So you do not wish to address transparency issues?

Mr. LACEY. I would have to turn that over to my distinguished

colleague, the negotiator.

Mr. PUTNAM. Mr. Ambassador, on the transparency issues you’ve

heard Dr. Lacey’s testimony. Is there a potential for the transparency provisions to be used against the United States, pharmaceutical industry, academic and research institutions and other

things of that nature? Are there dangers in that being used as a

tool against our interests?

Mr. MAHLEY. Thank you, Mr. Putnam. That question is one

which we have debated long in the negotiations. And I have to say

in the end, that there is a risk any time that you put people onsite

at places where proprietary information and national security information unconnected to biological weapons exists, that information may be divulged or may be discovered by the investigators.

Now, at the same time, there have been a number of provisions

written into the draft protocol in a deliberate effort to try to minimize or nullify that risk. The question of managed access, which

means that you have the ability to refuse to allow the investigating

team to do what it has specifically asked, but instead find a different way to answer their question that has—that envisions a

course of action which is not endangering a proprietary information, is one of the principles that has been used for all onsite activities.

Another one is that in terms of the so-called transparency visits

that are now envisioned in the draft protocol, the site has the ability to dictate what access will be granted by the inspection team.

So in that respect, we have attempted to minimize that, but I

would always have to say that it is never the case that you can

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completely nullify that. It’s something that has to be balanced

against the idea of the kind of information you will gain from being

able to have people go onsite and other—in other places other than

the United States.

Mr. PUTNAM. To what degree have the private industry stakeholders been consulted as these negotiations have moved forward?

Mr. MAHLEY. The stakeholders in this case are both the Department of Defense in the United States and the pharmaceutical industry in the United States. We have consulted regularly with the

pharmaceutical industry in the United States since the very onset

of negotiations. We have taken a number of inputs from them and

reflected on them in the government to adopt negotiating positions

for the United States that attempted to make sure that we aimed

in the right direction. We have also, of course, had the regular inputs from the Department of Defense and the inner agency process

throughout, and those have been used in development of U.S. negotiating positions. It is certainly the case that those stakeholders

have been firmly, thoroughly and completely consulted.

Now, do our positions and those that we were able to get in the

negotiation always reflect those positions 100 percent? I suspect

they would all say no.

Mr. PUTNAM [presiding]. Thank you, Mr. Ambassador.

At this time I’ll recognize the ranking member, Mr. Kucinich.

Mr. KUCINICH. Thank you. Ambassador, I want to welcome all of

the witnesses. Ambassador—is it Mahley? Have there been any inspections of U.S. pharmaceutical companies?

Mr. MAHLEY. There have been no inspections conducted under

the draft protocol of course, because it’s only a draft protocol. If

your question is have there been any practice activities or simulated activities taking place in United States pharmaceutical firms,

there have been no official ones done for the U.S. Government. Let

me embellish that answer slightly to say that one of the difficulties

in terms of conducting simulated or practice activities or trial activities on the U.S. pharmaceutical firms has been the fact that in

order to then promulgate any information from the result of such

onsite activities, would require that information from one pharmaceutical firm that offered itself as a model would be given to some

of its competitors.

Quite rightfully, I think the U.S. firms have been very, very leery

of doing that kind of cross-fertilization with their competitors because what they’re trying to protect are things from their competitors.

Mr. KUCINICH. Ambassador, do you think that pharmaceutical

companies should be exempt?

Mr. MAHLEY. I think if pharmaceutical companies were exempt,

the impact in the current state would probably be minimal, but at

the same time, there’s an open invitation that those are I think

areas which certainly are relevant to biological production.

Mr. KUCINICH. Do you think they should be exempt?

Mr. MAHLEY. I think the impact would be minimal if they were

exempt. Do I personally think they should be exempt? The answer

is no.

Mr. KUCINICH. What about biodefense facilities?

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Mr. MAHLEY. I don’t think that you can expect anyone to think

that we are being transparent if biodefense facilities categorically

are exempt. I do believe that it is very important for U.S. national

security that the activities on biodefense facilities be very carefully

controlled and be subject to all of the kinds of protections that I’ve

previously outlined.

Mr. KUCINICH. Thank you.

Ambassador Leonard, I have some basic questions about the effectiveness, and I was hoping perhaps you could help us. First, it

seems that these types of transparency measures could cause potential violators to take one of two courses. They could either hide

their work at the declared facilities or go underground. Would you

agree?

Mr. LEONARD. That is correct, sir.

Mr. KUCINICH. And for the first option, Dr. Lacey said that, ‘‘illicit warfare work could easily be concealed or cleaned up, rendering it highly improbable that international inspectors would detect

evidence of noncompliance.’’ I’m not sure I agree. If this work was

occurring at a declared facility, they would have to do a pretty good

job of keeping the operation secret, wouldn’t they?

Mr. LEONARD. It seems to me that there’s a difference between

improbable and impossible. I think that the violator would have to

worry that his cleanup would slip in some way. And in fact I think

there are from the efforts of UNSCOM in Iraq, there are examples

where efforts to clean up a site failed and some traces of the activity remain.

Mr. KUCINICH. They have inspectors poking around asking questions about why certain capabilities exceeded their declared intent.

I mean, isn’t that obvious that would happen?

Mr. LEONARD. I’m sorry?

Mr. KUCINICH. That under the scenario, and Iraq might be an example you would have inspectors at least asking questions about

why certain capabilities in the plant exceed their declared intent.

Mr. LEONARD. That’s correct. And that’s exactly what happened

in Iraq. The UNSCOM discovered large quantities of material for

fermenting biological substances. Asked what it was for, and the

Iraqis responded that inadvertently a zero had been added to the

purchase order so that they got 10 times as much as they needed.

That’s rather transparent.

Mr. KUCINICH. That sometimes happens at our Department of

Defense.

Now, the second option would be to go underground. And here

Dr. Lacey said, ‘‘violators could remove any risk associated with

such visits by engaging in illicit biological warfare activities at nondeclared facilities.’’ Do you agree that violators remove any risk

when they go underground? What other risk would they face?

Mr. LEONARD. You mean literally, physically deep underground?

Mr. KUCINICH. Right. Underground in any way you want to take

it.

Mr. LEONARD. No, I think that the danger that would be revealed, for example, by a defector and a request for an inspection

therefore triggered would be not insubstantial. These regimes are

regimes which in many ways do not command a high degree of loyalty from their people, and they therefore constantly have to worry

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about defectors. And we have, as you may know, here in Iraq—in

Washington a leading defector from the Iraqi nuclear program,

very interesting person to talk to about this sort of thing.

Mr. PUTNAM. The gentleman’s time has expired.

Mr. KUCINICH. I thank the Ambassador.

Mr. PUTNAM. Mr. Otter, you’re recognized.

Mr. OTTER. Thank you, Mr. Chairman.

Let me join with my colleagues in expressing appreciation for you

being here today and for the testimony that you’ve offered. I’m not

sure exactly where I would direct this question—to the past

present or the future—but perhaps I could get a communal response here.

Isn’t it realistic to think that some countries that are not really

willing to obey something that they may have agreed to, like such

an agreement and treaty that we’re talking about, to actually find

surrogate sites and surrogate governments to do those things for

them? And if those governments don’t fall under the treaty, under

the agreement, that they then wouldn’t be subject to these same reviews and same investigations? Dr. Lacey.

Mr. LACEY. Thank you, Congressman Otter. I guess you have

identified yet a third evasion scenario that I did not mention.

I think, as Ambassador Mahley mentioned, there are 143 states

party to the Biological Weapons Convention. In order to be a party

to the protocol, you would have to be a party to the BWC. But you

don’t necessarily have to be a party to the protocol if you’re a member of the BWC. So there are—143 does not constitute all the nations in the world, obviously. There would be the possibility of violating the BWC itself by using third parties. I think that is a recognizable additional cheating possibility.

Mr. OTTER. Ambassador Mahley.

Mr. MAHLEY. Thank you, Congressman.

There is obviously in any kind of a well-subscribed international

agreement a certain amount of political price to be paid for keeping

yourself completely outside of the regime and therefore not subject

to the controls of it.

However, certainly in cases of national security, that’s very possible; and certainly again we have a number of states of concern

in terms of biological weapons capability in terms of our own intelligence assessment who are not currently parties to the Biological

Weapons Convention and therefore certainly are not subject to any

kind of international sanction for not having done so. That’s a sovereign decision that they have to take to make themselves subject

to that kind of a treaty.

Mr. OTTER. Ambassador Leonard.

Mr. LEONARD. Thank you, Mr. Congressman.

First of all, I think in my prepared testimony I underline the

need to make every effort to make the BWC and the protocol attached to it as universal as possible. It’s really shameful that we

have only 143 parties.

And the same applies to the Chemical Weapons Convention.

These both should be—the U.S. Government should lead an effort

to universalize these and to bring those few countries that really

have some problem with it into high relief.

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But, second, with regard to the particular scenario that you cited,

I would suggest it’s a rather unlikely one. Governments that engage—a government that might engage in creating a BW program

would do so for very serious reasons relating to its own national

security, and to put then this instrument for its security, for its defense on the soil of another country which might be friendly in one

circumstance but not friendly 5 or 10 years later would be, it seems

to me, an extremely rare sort of circumstance.

You take Iran, for example. Iran is a country which we say—our

intelligence says has got a BW program. I’m not sure whether

that’s true, but the intelligence is presumably rather solid. But

Iran is a country which has literally no friends anywhere where it

could put such a facility. Its relations with its Arab neighbors are

poisonous. Its relations with the countries to the north are traditionally very bad. And the same with Pakistan and so on to the

east. So there simply is not a way that a country like Iran could

credibly be thought to be in danger of doing that.

Mr. OTTER. Thank you, Mr. Ambassador.

Before my light turns red, I have one more that I would like each

of the three of you to have an opportunity to answer.

You know, coming from the private sector and operating big operations, some of which could not be really considered a biological

warfare manufacturing plant, but I know that on numerous occasions, almost daily, I had the USDA, the FDA, OSHA, EPA, the

Department of Labor, and the list goes on and on and on, who investigated my plants and, in the investigation of my plants, if EPA

found something that I was doing wrong with OSHA, reported the

same to OSHA. If the OSHA found something that I was doing

wrong with the U.S. Department of Agriculture, reported such to

OSHA.

My question then has to do with, does the Department of State

that operates through the national security under this protocol, do

they have such a cross—pardon the term—fertilization program

with other agencies of State?

Mr. MAHLEY. Congressman, I’ll take a shot at that.

And, again, it doesn’t apply to the biological area because there

is no regime. But one of the things, for example, that you have

there is the question about what happens in a Chemical Weapons

Convention inspection of a U.S. chemical firm; and that’s a question that was debated during the implementing legislation issue on

the Chemical Weapons Convention. And essentially one of the ways

in which we got around that was a hold blameless clause which

simply says that we are not empowered to then inform on things

that we observe during the course of a Chemical Weapons Convention inspection of the U.S. regulatory authorities.

Thank you.

Mr. OTTER. Thank you.

Thank you, Mr. Chairman.

Mr. PUTNAM. Thank you, Mr. Otter.

The gentleman from Massachusetts has graciously allowed the

gentleman from Connecticut to proceed with his questions. Mr.

Shays.

Mr. SHAYS. Thank you.

It’s nice to have all of you here.

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I thank you, Mr. Tierney. I have a 3 p.m., with a leader, and I

just need to get to that meeting.

I’d like to ask you, Mr. Mahley, we have a deadline of November

of this year. What’s the significance of the deadline? Why do we

have the deadline and what happens if we don’t make it?

Mr. MAHLEY. Thank you, Mr. Chairman. A very good question.

First of all, the United States does not agree that we have a

deadline of November. The United States has said that a November

target was not a deadline. We have maintained that consistently

throughout the negotiations.

Second, the confluence of events, if you will, for November is

that, whatever the status of the protocol in November, there will

be a review conference of the Convention in November.

Now I’ve indicated in my written testimony that a number of

issues about Biological Weapons Convention implementation have

been, if you will, assumed within the protocol over the last 6 years.

One of those, for example, is the question about export controls,

which has been one of the goals of some on the line, to get a

multilateralization of export controls and the standardization of export controls written into the protocol. They have not been successful at this point.

But if there is no protocol I think it is only logical to expect that

those same issues are going to arise in the context of the review

conference in November, which is a review conference not of the

protocol but a review conference of the Convention scheduled for

every 5 years. So, therefore, we’re going to have a very contentious

set of debates in November in the environment within the context

of the Convention, not within the context of the protocol. That’s the

reason for the November deadline, is to have things done prior to

the review conference.

However, as I indicated, the United States does not agree and

there is no legal basis as far as we can find for the mandate of the

ad hoc group to expire come November.

Thank you.

Mr. SHAYS. This committee has had 19 hearings on terrorist

issues, and some have related to biological weapons and chemical

weapons and nuclear weapons and so on. But the one thing I am

absolutely certain of is that there will be another terrorist attack

on this country, be it nuclear, biological, chemical. I think it less

likely nuclear.

At the time I believe this to be true, I believe you are negotiating

in a sense with countries that, as we speak, are cheating, are not

abiding by the Convention; and yet they in some cases can be your

most outspoken critics, talking about how we need to abide by this

system.

Which leads me to this point. Since a protocol—since the biological agent can have a dual use so—since the motive ultimately of

how you use that agent is going to be the real issue, how is it possible to draft a protocol that actually will do the job?

Mr. MAHLEY. That’s a question we’re debating right now and for

which we do not yet have a satisfactory answer.

It is a very difficult task. It certainly cannot be done in an unequivocal fashion. And so all you can do is to provide in some fashion additional information which will allow you, along with the

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other kinds of information you get from what Dr. Lacey referred to

as national means, intelligence means, to then try to draw some

kind of national assessment about what the intent is in the target

country. Anyone who believes that this protocol will provide in any

fashion an unequivocal answer about whether or not someone is

cheating on the Biological Weapons Convention is naively optimistic.

Mr. SHAYS. One of my—Ambassador Leonard, I’m going to ask

you this question soon, but one of my concerns is that the very

countries we know from our own information are not abiding by the

Convention will be given under this protocol the opportunity, Mr.

Mahley, to examine U.S. plants. What is to prevent them from just

making an outlandish statement that this land is being used to

produce biological agents and for them to come and inspect it and

to still make that claim? What prevents them from doing that and

not sensationalizing and putting focus on plants in the United

States that simply are being used for the purposes intended, which

is for commercial and legitimate reasons?

Mr. Mahley, what would be the answer to that question?

And then I’m going to ask the same question to you, Ambassador

Leonard.

Mr. MAHLEY. First of all, let me make one technical correction,

sir, and that is that it would be the international civil servants of

the technical secretariat that would conduct the inspections, not

the people from the accusing country. So in that sense it would— indeed, to get word from another country involved—a charge from

another country involved in the inspection, it would require them

to ask for an investigation which would require them to make an

allegation of some kind of misconduct on the part of the United

States.

Now, there is nothing which will prevent them from doing that;

and I would point back to 1997 when the government of Cuba

made a quite outlandish allegation against the United States for

having employed biological weapons against them in the form of

thrips palmi. It required us to go to a special conference of the

states parties of the Biological Weapons Convention and spend an

extended amount of time rebutting that charge.

Now, the conference of states parties believed our rebuttal. In

that sense I think we are able to successfully defend ourselves. So

there is a political judgment that will be weighed into that.

However, you are correct in the sense that if it were done domestically it would be—must have been more difficult for an individual

firm to then allay itself or remove from itself the allegation or the

taint of having been associated with a biological weapons accusation, even if unproven.

Mr. SHAYS. Could I, with your permission, Mr. Chairman, and

your tolerance, Mr. Tierney, just ask the other two members of the

panel to respond to that question; and then I’ll be on my way. Ambassador Leonard.

Mr. LEONARD. I want to just add to what Ambassador Mahley

said, that there is a series of arrangements set forth in the protocol—in the draft protocol for what are called triggers that an allegation has to pass through in the machinery of the Convention

itself. The states parties have to vote, and it requires three-quarVerDate 11-MAY-2000 11:15 Oct 28, 2002 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6633 C:\DOCS\81592.TXT HGOVREF1 PsN: HGOVREF1
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ters or two-thirds or half to—depending on the circumstances to

permit this investigation to go forward or to deny it the ability to

go forward. And those I think are rather well designed to prevent

frivolous and purely propagandistic efforts of the sort that you

rightly worry about.

Mr. SHAYS. Certainly that would minimize it.

Dr. Lacey.

Mr. LACEY. Congressman, I would just add that since we envision that there would be no utility whatsoever to such inspections

I couldn’t imagine any such inspection being called for a legitimate

verification purpose. But I believe the protections that Ambassador

Mahley and Ambassador Leonard have outlined in fact would be

sufficient to protect the United States from frivolous inspections.

Mr. SHAYS. Thank you, Mr. Chairman.

Thank you, Mr. Tierney, very much.

Mr. PUTNAM. Thank you, Mr. Shays. I thank Mr. Tierney for his

indulgence.

The gentleman from Massachusetts is recognized for 10 minutes.

Mr. TIERNEY. Thank you.

I want to thank all of you for coming and testifying this morning—this afternoon now.

Ambassador Mahley, at the end of your written testimony and

verbal testimony today I think you hit the crux of the matter. That

is, what you’re trying to do is seek a balance. That, from what I

gather you’re telling us, the administration decided not to pull out

from the attempt to reach a protocol that will be acceptable, but

you’re trying to seek a balance that will find the improvement and

the ability to impede the threat and realty of the biological weapons proliferation. You understand that there is some risk inherent

in that effort but that you intend to try and find some balance.

Would that be a fair statement?

Mr. MAHLEY. I think that’s a fair statement, Mr. Tierney, about

the objective of the protocol negotiation overall, yes, sir.

Mr. TIERNEY. Now, back at the last hearing when the administration didn’t allow the witnesses to come forward and testify, we

were told that’s because they needed a postponement until they

were totally certain as to what the administration’s decision was

going to be, and that would take us 2 weeks. So here we are some

5 weeks later, Ambassador, and I’m quoting your testimony, you’re

still considering the administration’s approach. Why hasn’t that approach been finalized yet?

Mr. MAHLEY. All I can say, sir, is that it has been one that has

engaged senior members of the U.S. executive branch in the deliberations; and, frankly, it’s just one that is not an easy call because

there are two things to balance from the U.S. perspective.

Now, the balance that I spoke of in my testimony is a balance

between benefit and risk. Frankly, we do not believe that the provisions of this protocol as they are now drafted provide a good balance between benefit and risk. The question, though, is that there

are other political issues that get engaged in addition to the substantive area and then it becomes a question of controllable risk as

opposed to whether or not it’s a natural balance. That’s the issue

with which we’re still struggling.

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Mr. TIERNEY. But I assume—maybe I shouldn’t say that. But it

looks to me as if you’re trying to tell us that the administration has

decided at least not to pull out of these negotiations and that the

effort should be made to strike some position that recognizes the

interest of the United States and strikes that balance which has so

far eluded.

Mr. MAHLEY. We are trying to find a way in which we can preserve the process and certainly the attempt to try to find ways

which will be beneficial. How to do that is, again, something which

is much more difficult to come down with an answer which will be

agreeable to a number of other countries.

Mr. TIERNEY. Ambassador, would you please provide us—this

committee—with a record copy of the administration’s review of the

chairman’s text, the one that you supervised?

Mr. MAHLEY. I think we can provide that in terms of—it will be

classified, obviously, but certainly within those parameters. I will

refer that to my legal people to provide.

Mr. TIERNEY. You believe it will be classified or you know that

it’s classified already.

Mr. MAHLEY. I know that it’s classified.

Mr. TIERNEY. I would ask that be accepted and made a part of

the record in the parameters of its classification.

Mr. PUTNAM. To the extent practicable, we’ll certainly comply

with all the classified document handling requirements. But certainly we’ll be happy to get one provided to you.

Mr. TIERNEY. Thank you.

Now, Ambassador Mahley, in your testimony you listed three

concerns with the chairman’s text; and the first was concerning export controls. You said that was a lightening rod. Is that right?

Mr. MAHLEY. That is correct sir.

Mr. TIERNEY. Now, I would assume that you place those issues

as one of your top concerns, but I’ve heard that at the last hearing

at least that issue of export controls was determined largely in

favor of the west or the U.S. position. Is that accurate?

Mr. MAHLEY. First of all, to say that has been resolved would be

inaccurate. There have been a number of countries, including some

of the nonaligned countries, that have indicated in the negotiations

that is an area which they wish to readdress with respect to the

chairman’s text. The current chairman’s text, in the area of the

text which deals directly with the issue, which is article 7 of the

text, sections A through D, does indeed in my judgment largely reflect Western values. The question that you have is whether or not

there are other areas of the text in which ambiguities that are inherent in the text allow reintroducing by dedicated personnel of

other countries some of the very things that we have objected to

and managed to eliminate from article 7.

Mr. TIERNEY. Assuming no opening up of that, are you saying

that the United States could oppose or support article 7 as it’s certainly written?

Mr. MAHLEY. I would say the United States would oppose the article 7 as currently written because it contains a section E which

we find unacceptable. If the article 7 as currently written were

composed only of sections A through D, then I believe that United

States would be prepared to support that particular article.

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Mr. TIERNEY. Which you share with us what section E is?

Mr. MAHLEY. Section E requests that the first review conference

of the protocol, not of the Convention but of the protocol, undertake

to determine whether or not an export ban against—of all biological materials against all countries not states parties to the protocol

should be instituted. Because it is something that would be taken

up at a review conference of the protocol, that is a measure that

would then be adopted by the two-thirds vote of the parties participating in the review conference. That is something which we believe is in violation of article 10 of the Convention itself and therefore is not something which is acceptably a measure which might

be adopted by the protocol.

Mr. TIERNEY. Ambassador, another concern you raise is that concerning pharmaceutical companies; and the issue apparently is

that spies would somehow infiltrate the inspection teams and steal

the companies’ secrets. I think you indicated that you don’t think

the current text obviates those concerns, is that correct?

Mr. MAHLEY. That is correct.

Mr. TIERNEY. Well, at the last hearing we also talked about that

a bit and at least some indicated that the safeguards in the chairman’s text were quite substantial in that regard. I think one of the

examples they gave us was that the text forbids sampling in nonchallenged visits, is that right?

Mr. MAHLEY. That is correct, that sampling is prohibited in nonchallenged visits.

Mr. TIERNEY. And that the text exempts a declaration of certain

facilities, too, such as some biodefense facilities.

Mr. MAHLEY. That is correct.

Mr. TIERNEY. It requires no significant information about production facilities other than license vaccines. It also exempts them

from visits.

Mr. MAHLEY. I would have to check the text in its entirety. That

does not sound correct to me. Vaccine production facilities, the last

that I looked, are indeed subject to visits. Other production facilities are subject to visits if they are among those that are declared.

There are indeed a number of exemptions to that—to declaration

that are written into the text. But those facilities which are declared are subject to random routine visits.

Mr. TIERNEY. And the chairman’s text seems to also provide that

all onsite activities of inspectors during visits are at the discretion

of the host government.

Mr. MAHLEY. Particular access is at the discretion of the visited

facility. That is correct.

Mr. TIERNEY. Can you tell us what other specific provisions the

United States would advocate in addition or instead of the ones

that we just cited?

Mr. MAHLEY. One of the things that the United States would advocate in that is, again, not only that those provisions be mandated

and enforced but also that those provisions would be made universal for all onsite activities.

Mr. TIERNEY. Thank you.

And I think, finally, the last concern that you talked about was

protection of defense agencies. And I think I’m quoting you properly. It said, providing extensive information to an international orVerDate 11-MAY-2000 11:15 Oct 28, 2002 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6633 C:\DOCS\81592.TXT HGOVREF1 PsN: HGOVREF1
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ganization under the guise of transparency runs the risk of providing a proliferator or terrorist with a road map to exploit our

vulnerabilities. Can you still make that argument, even given all

the protections in the chairman’s text?

Mr. MAHLEY. I can make the argument because it now is an argument which hinges upon the determination of the proliferator.

Some of the most obvious traps have indeed been eliminated.

The difficulty is, No. 1, that our program is dynamic and so

therefore it’s very difficult to predict exactly what information will

be available in the future. But, No. 2, it is a case that there are

combinations of elements, for example, there are requirements that

biodefense activities be identified. There are separate requirements

for declaration which are not the direct biodefense declaration

which talk about the work with listed agents.

Now, if indeed you have a confluence of saying that you have a

biodefense facility that is identified as a biodefense facility by location and you have a separate declaration that is required for that

facility of the fact that it is working with listed agents and then

you discover therefore that in biodefense we are working with the

specific list of agents, that constitutes to the dedicated proliferator

a vulnerability list of all those agents which we are now preparing

to defend against and therefore tells him which agents he ought to

be trying to exploit which are not on that list. That’s a combination

factor, not one specific declaration, but it still is a threat that I believe is something for our biodefense people to take into account.

Mr. TIERNEY. Are there others?

Mr. MAHLEY. That’s the only example I can think of off the top

of my head, but I would happy to go back and try and find some

others.

Mr. TIERNEY. I was looking for general areas or important areas

that you would be concerned about.

Thank you very much for your testimony, all of you. I appreciate

it.

Mr. PUTNAM. Thank you, Mr. Tierney.

Ambassador Leonard, earlier I unfortunately cut you off and

apologize for that. They moved me from the kids’ table to the saddle, and I just totally lost my head.

You were elaborating on your written testimony with regards to

Russia’s ongoing weapons program. Would you care to elaborate on

that some more, the ongoing efforts in the former Soviet Union?

Mr. LEONARD. Thank you, sir.

As I think is well known, there was an enormous BW program

in the Soviet Union in contravention of the BW Convention. We

have here among other defectors a detector from that program who

was the deputy director or the research director of it. He has written extensively about the magnitude of the program. He and a

number of others consider that the program has not been completely eliminated. There are still some pockets of activity within

the Soviet Union—Russia principally that would be in contravention of the Convention if they were known, and I think very few

people have been satisfied by the assurances we’ve had from the

Russian officials in that regard.

I think that the protocol would trigger a thorough review of all

of that and would require the Russian Federation to basically come

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clean and to reveal what there is and to eliminate any of it that

is actually not defensive in character but contravenes the treaty.

Since that activity, that former offensive program, is the most

likely source of any terrorist activity, the most likely place from

which either experts or biological substances could come that would

be used by terrorists or by a government illicitly conducting a BW

program, getting rid of that particular seed of infection, if I may

put it that way, it seems to me is one of the most important tasks

that we face. And we’ve tried to do it in a trilateral process ourselves, the British and the Soviet Union then, as the three depositories of the BWC, but it didn’t work. We really need to go back

at that, and I think that’s one of the benefits that would derive

from moving forward with the protocol.

Mr. PUTNAM. Thank you, Mr. Ambassador.

Ambassador Mahley, in our subcommittee meeting on June 5th,

Mr. Zelicoff, the senior scientist for Sandia National Laboratories,

said, quote, that there was intense friction between the National

Security Council and the entirety of the interagency working group

concerning biological weapons control. Essentially nothing in the

way of tangible policy was put forward during this time because

one or at most a few low-level staffers within the NSC sought to

suppress the results of the mock inspections, break interagency

consensus on negotiating strategy and impose an extraordinarily

ill-suited vision for the BWC protocol which would make it like the

Chemical Weapons Convention protocol.

Could you elaborate, to the extent that you are aware of, of the

source of that friction in the previous administration over the protocol policy and what, if any, impact the NSC interference had on

the development of that policy?

Mr. MAHLEY. I think, Mr. Putnam, that the elaboration I would

make on that is not going to be too extensive. I think that’s a perception that was presented by Mr. Zelicoff with full belief in what

he was saying.

I would simply say that, in my judgment, we have had a problem

in the U.S. Government with respect to this protocol in the following sense: There are a number of agencies that have asked for

throughout the negotiation consideration of equities, very real equities that they have in the process. I am talking about the Department of Commerce. I’m talking about the Department of Defense.

I’m talking about the Department of Energy. I’m talking about a

number of executive branches that have a number of places that

they believe that real national security was potentially at risk by

the nature of this protocol.

At the same time, the inherent ambiguity in trying to find answers to what people intended to do with activities in the biological

nature by onsite activities is, as Dr. Lacey has said, an almost unanswerable conundrum.

In terms of the U.S. Government facilities, there were activities

conducted which did indeed raise some of those ambiguities. There

was also I think a general perception in the U.S. Government during the previous administration that this issue, the issue of a biological weapons conference protocol, was not one which was centered to the activities of the executive branch government and

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therefore not one which had what I euphemistically refer to frequently as senior guidance and leadership.

Now one of the things that my probably much-too-extensive experience in the arms control arena has led me to believe about the

formulation of the U.S. policy is that you’re never going to get U.S.

leadership in a negotiation or coherent U.S. policy without the

intervention of senior and experienced personnel from the executive

branch because no individual agency, just like no individual country in a multilateral negotiation, is going to be prepared to sacrifice

its own equities without seeing where that sacrifice leads to in the

way of an outcome which has some greater value to it for the country as a whole or in the case of countries to their own national interest as a whole.

Now, that is only achievable by getting a fairly senior and fairly

broad and experienced perspective about how one can attempt to

balance costs, risks, benefits in doing that. That particular process

in my personal judgment did not occur during the previous administration. Instead, the entire negotiation policy development process

was left to mire at relatively junior levels of the executive branch.

Therefore, the particular influence and interests of individuals and

the particular perspective in terms of the outcome which they wish

to see from their own perspective in terms of the outcome of the

negotiations was neither corrected nor was it balanced nor was it

even debated in terms of more senior elements of the U.S. Government. In that respect, the United States in my judgment did indeed

suffer in our ability to exhibit leadership, initiative and imagination in terms of proposing solutions to the various issues that arose

during the course of the negotiation.

Did we have instructions about what the U.S. policy was at any

particular point? Yes, we did. Did we as a delegation in Geneva

execute those instructions? Yes, we did. So in that sense the cost

is certainly one of opportunity, not one of impetus or not one of inaction.

Thank you.

Mr. PUTNAM. Thank you, Ambassador.

You mentioned a number of departments in the executive branch

that have sought influence in this process. To what degree were the

Centers for Disease Control consulted and what input have they

had on the protocol negotiations?

Mr. MAHLEY. The Centers for Disease Control in Atlanta was

consulted on a technical basis early in the negotiations to try to

give us some perspective from the idea of disease control itself,

what some of the difficulties are in terms of, for example, the outbreak of disease, whether it’s a usual outbreak of disease, an unusual outbreak of disease, and the kinds of epidemiological activities that would normally be engaged in trying to pursue an outbreak of disease.

One of the things that we have been very careful to do, however,

with the Centers for Disease Control in terms of the development

of executive branch policy with respect to biological weapons is to

avoid involving the Centers for Disease Control in a biological

weapons question. This is much the same as, for example, the issue

of involving the World Health Organization internationally in the

biological weapons area.

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One does not wish to do that because disease is a natural problem and trying to confuse the issue of whether or not disease outbreaks or disease data are connected with biological weapons, as

opposed to connected with the events of nature, is not something

you should do lightly. Because in doing that you then potentially

cause people to be inhibited about the reporting of disease data for

fear that it will be somehow or another associated with being biological weapons associated. And the lack of accurate data in terms

of disease occurrence, disease outbreak and disease characteristics

is a much larger and wider danger in terms of health national security and other kinds of threats than the issue of the biological

weapons protocol. So in that sense we carefully restricted the Centers for Disease Control to being a technical consultant in terms of

the disease characteristics on which they are truly experts.

Mr. PUTNAM. Thank you, Mr. Ambassador.

Mr. Tierney, would you like another round of questions?

Mr. TIERNEY. Just two questions.

I’d like to ask this of each of the panelists, and answer as briefly

or as long as you want. Essentially, can we negotiate a protocol

which improves the ability to impede the threat and the reality of

biological weapons that are proliferated in the world, specifically

one that, even given the magnitude of the advanced state of the

U.S. biodefense activity and the biotech industry in the United

States, strikes an acceptable balance between the gains that would

result as opposed to the risks that would be involved?

I can repeat that if anybody needs me to repeat it.

Ambassador Leonard.

Mr. LEONARD. Thank you, Mr. Tierney.

I think my answer is clearly yes. I think that certain changes in

the draft protocol put forward by the chairman would certainly be

helpful. Some of them might in some way strengthen it. Some of

them might weaken some of the provisions.

I would certainly support the specific suggestion that Ambassador Mahley mentioned with regard to export control in order to

avoid a problem arising at a future review conference of the protocol. But it seems to me that these rather minor changes are attainable.

More than 40 delegations in the Geneva negotiation have indicated that they want to go forward on the basis of the protocol as

it exists. Not only the 18—the 15 members of the European Union

but the other 10 or so eastern European countries associated with

them and another 10 or 15 from other—in other groups who have

had taken the floor in Geneva. So that there is clearly a desire

there for the negotiation to move forward and to close.

I certainly agree with Ambassador Mahley that there is no absolute deadline. November is not a drop-dead date. But some serious

negotiation and work to improve the protocol to the point where it

is acceptable all around is certainly in order.

Now, I think the U.S. Government, the administration, understands that; and I’m worried about the conclusions they may draw

from it. They certainly have been taken aback by what happened

to their position with regard to the Kyoto treaty, and they face a

very difficult problem of regaining some sort of credibility in their

express desire to do something.

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I fear that something similar might happen in this area as well;

and I certainly would like to say that I think the worst thing that

could happen would be for the government, the administration, to

say that this protocol is not satisfactory and we have a new bright

idea of some sort that we think can effectively substitute for it.

There have been some hints that something like this might be in

the offing, and I think the result—there are some good ideas for

other things besides the protocol. But if the United States puts

them forward as a substitute for the protocol, it will kill them dead

as a dodo; and that is not in our interest or in the interest of moving forward on this basic problem.

Mr. TIERNEY. Ambassador Mahley.

Mr. MAHLEY. Thank you, Congressman Tierney.

Do I believe that it is possible to devise a protocol which has adequate balance between risks and benefit? The answer to that is yes.

Do I believe that such a protocol is negotiable in the current context, given the very disparate objectives that a number of countries

that are participating in the negotiations have with respect to what

they want with the protocol? The answer is that is, unfortunately,

I do not believe it very likely.

Mr. TIERNEY. Is that regardless of the amount of time involved

or just by the deadline of November?

Mr. MAHLEY. The difficulty—first of all, the deadline by November I think would have to be on the basis of the current text. I have

already indicated that we have some substantial difficulties with

that.

The difficulty beyond November is that if you go beyond November I think you simply reintroduce some very disparate objectives

that you have, and it would be a very difficult task to overcome

those. For example, you mentioned export controls previously. We

have been I think very successful in rejecting a number of attacks

on the export control arena from a number of countries whose

major objective in this negotiation has been to undermine export

controls as a means of trying to stop proliferation. If we go back

in the negotiation, I see no reason why they will not renew those

efforts to try to get a worse outcome in that particular area than

what we have already.

Mr. TIERNEY. Doctor.

Mr. LACEY. Congressman, I’ll just dovetail my comments onto

Ambassador Mahley’s; and I would say that, with respect to enhancing the verifiability of the Biological Weapons Convention, we

have to recognize that there are limits to what can be done with

multiple committee lateral arms control. I think there are a number of things we can do to improve verifiability of the BWC. We can

do them unilaterally. We can do them in concert with our other nations, our friends, our allies. We can devote additional resources to

the collection and evaluation of intelligence and other related data.

Diplomatically, we can take a very vigorous approach to compliance diplomacy. This means following up on compliance concerns

and suspected violations. We can press for visits to suspect facilities by compliance experts.

Ambassador Leonard mentioned the trilateral process some time

ago. There are variants of that would be possibilities. We can press

known and suspected violators to come clean and to take corrective

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action. These are things that we can do nationally and certainly we

can do multinationally. But we have to recognize I think that, ultimately, in terms of improving verifiability, a protocol is not the

way to do it.

Mr. TIERNEY. Thank you.

Thank you, Mr. Chairman.

Mr. PUTNAM. Thank you, Mr. Tierney.

At this time, if any of the witnesses have any brief closing remarks to summarize where we’ve been this afternoon—I’ll start

with Dr. Lacey and recognize any or all of you for some closing

statements.

Mr. LACEY. Thank you, Mr. Chairman.

I think, in summary, I would reiterate that the U.S. Government

for at least the past 10 years has been seeking ways to improve the

Biological Weapons Convention, to make it a more effective convention in combating the threat of biological weapons. In that entire

process, we have never envisioned that a protocol would be a

means to improve verifiability of that convention. We always recognized that the protocol could do some useful things, and transparency was one of them. Ambassador Mahley has suggested several other areas.

We also recognized I think, Congressman Tierney, that in fact a

balance could be struck; and we have been seeking to strike a useful balance.

But never, at least in the three administrations that I have

served in, have we ever recognized—envisioned that we could do

improvements to verifiability through a protocol. We have been

consistent in that policy since 1992, and nothing that we have seen

in the ensuing 10 years has changed that perception.

Mr. PUTNAM. Thank you, Dr. Lacey.

Ambassador Mahley.

Mr. MAHLEY. Thank you, Mr. Chairman.

I would like, first of all, to express my appreciation for having

had the opportunity to testify this afternoon. I hope we have provided some information which is useful in your deliberations.

In sum, I again want to go back to something that I stated at

the outset. We have had a lot of discussion about a protocol to the

Biological Weapons Convention and how a protocol to the Biological

Weapons Convention is designed to try to enhance the utility of

that convention. Now, what I want to make sure we understand is

that protocol is separable from that convention.

There is a very real threat of biological weapons in the world,

and I will give a kudo right now to Ambassador Leonard, sitting

to my left. Because when they negotiated the original Biological

Weapons Convention back in 1972, and when they got it entered

into force in 1975, it was a difficult document, a short document,

and it has remained a very flexible document in adapting itself to

the world as biotechnology has gone along its route. It has adapted

itself to the changing threat in the world, and it has remained a

very useful barrier against anyone thinking that biological weapons

was an acceptable route to national security.

Whatever the outcome of a particular instrument designed to try

to amplify that, we should not and must not lose sight of the underlying principle that the Biological Weapons Convention entails.

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Certainly I agree with Ambassador Leonard that certainly one of

the things that the United States should be doing and I hope will

be doing with renewed vigor in the coming years is extending the

number of countries that are parties to that and have indeed renounced biological weapons as an answer to their security problem.

Thank you.

Mr. PUTNAM. Thank you, Mr. Ambassador.

Ambassador Leonard.

Mr. LEONARD. Thank you, sir.

Let me pick up on two points that Ambassador Mahley made.

One was the very valid one for high-level involvement in this process if it’s to be successful. The second is the problem—the very real

problem of those members of the negotiating group whose objectives are very different from ours, in particular those who want to

weaken the system of export controls.

On the first point, let me recall that when the former President

Bush decided he wanted a Chemical Weapons Convention he got

up and left the White House and went over to Geneva and sat in

the chair next to our Ambassador and told the whole conference on

disarmament that he wanted a convention; and that had a dramatic effect on making it clear that the United States was 100 percent behind this.

Now, if anything like that were to happen, if the United States

would make it clear that it wants a protocol at the very highest

level, that it’s ready to use its weight in the world to bring about

a successful solution to the negotiation, it would have a dramatic

effect; and the first place it would have a dramatic effect is on

those like the countries that are trying to weaken the whole operation by introducing impossible conditions on the question of export

controls. They will only be driven off of that when it’s clear that

the United States is in this 110 percent and wants the protocol and

is not going to be driven off of its positions with regard to export

controls and the protection of the Australia group. Once that’s

clear, then I think they may stay out for the time being. But an

effort to universalize the Convention following on that successful

negotiation would I think transform the whole scheme.

Thank you, sir.

Mr. PUTNAM. Thank you, Mr. Ambassador.

The subcommittee thanks all of you for your expertise and for

your candor in responding to the questions. This is not the first

hearing we’ve had on this topic, and I would doubt that it will be

the last as these issues continue to unfold.

With that, the subcommittee is adjourned.

[Whereupon, at 3:40 p.m., the subcommittee was adjourned.]

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