[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
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
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___________________________________________________________________________
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COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia ROD R. BLAGOJEVICH, Illinois
DAN MILLER, Florida DANNY K. DAVIS, Illinois
DOUG OSE, California JOHN F. TIERNEY, Massachusetts
RON LEWIS, Kentucky JIM TURNER, Texas
JO ANN DAVIS, Virginia THOMAS H. ALLEN, Maine
TODD RUSSELL PLATTS, Pennsylvania JANICE D. SCHAKOWSKY, Illinois
DAVE WELDON, Florida WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida ------ ------
C.L. ``BUTCH'' OTTER, Idaho ------
EDWARD L. SCHROCK, Virginia BERNARD SANDERS, Vermont
JOHN J. DUNCAN, Jr., Tennessee (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 DENNIS J. KUCINICH, Ohio
BENJAMIN A. GILMAN, New York BERNARD SANDERS, Vermont
ILEANA ROS-LEHTINEN, Florida THOMAS H. ALLEN, Maine
JOHN M. McHUGH, New York TOM LANTOS, California
STEVEN C. LaTOURETTE, Ohio JOHN F. TIERNEY, Massachusetts
RON LEWIS, Kentucky JANICE D. SCHAKOWSKY, Illinois
TODD RUSSELL PLATTS, Pennsylvania WM. LACY CLAY, Missouri
DAVE WELDON, Florida ------ ------
C.L. ``BUTCH'' OTTER, Idaho ------ ------
EDWARD L. SCHROCK, Virginia
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
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
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 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 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 dual-capable activity is legitimate or
illicit. Intent is very difficult to determine 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 laboratories. 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
so-called, 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 Biological
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.
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 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.
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.
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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 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?
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 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.
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.
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 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-quarters 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.
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.
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 organization 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 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 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.
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.
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 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.
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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