[House Hearing, 107 Congress]
[From the U.S. Government Printing Office]



                               before the


                                 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

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                     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
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
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
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 

                CHRISTOPHER SHAYS, Connecticut, Chairman
ADAM H. PUTNAM, Florida              DENNIS J. KUCINICH, Ohio
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          ------ ------

                               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

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



                         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 
    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 
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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. 
    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 
    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 
    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 
    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. 
    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 
    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. 
    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 
    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 
    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 
    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 
    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 
    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 
    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, 
    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. 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.]