[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
THE BIOLOGICAL WEAPON CONVENTION: 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 SIXTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 13, 2000
__________
Serial No. 106-262
__________
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
U.S. GOVERNMENT PRINTING OFFICE
74-704 WASHINGTON : 2001
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
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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 ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on National Security, Veterans Affairs, and International
Relations
CHRISTOPHER SHAYS, Connecticut, Chairman
MARK E. SOUDER, Indiana ROD R. BLAGOJEVICH, Illinois
ILEANA ROS-LEHTINEN, Florida TOM LANTOS, California
JOHN M. McHUGH, New York ROBERT E. WISE, Jr., West Virginia
JOHN L. MICA, Florida JOHN F. TIERNEY, Massachusetts
DAVID M. McINTOSH, Indiana THOMAS H. ALLEN, Maine
MARSHALL ``MARK'' SANFORD, South EDOLPHUS TOWNS, New York
Carolina BERNARD SANDERS, Vermont
LEE TERRY, Nebraska (Independent)
JUDY BIGGERT, Illinois JANICE D. SCHAKOWSKY, Illinois
HELEN CHENOWETH-HAGE, Idaho
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Lawrence J. Halloran, Staff Director and Counsel
Jason Chung, Clerk
David Rapallo, Minority Counsel
C O N T E N T S
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Page
Hearing held on September 13, 2000............................... 1
Statement of:
Mahley, Donald A., Ambassador, Special Negotiator for
Chemical and Biological Arms Control, Department of State;
Susan Koch, Deputy Assistant Secretary of Defense for
Threat Reduction, U.S. Department of Defense; R. Roger
Majak, Assistant Secretary of Commerce for Export
Administration, U.S. Department of Commerce; and Jack L.
Brock, Jr., Managing Director, Acquisition and Sourcing
Management, U.S. General Accounting Office................. 6
Letters, statements, etc., submitted for the record by:
Brock, Jack L., Jr., Managing Director, Acquisition and
Sourcing Management, U.S. General Accounting Office,
prepared statement of...................................... 42
Koch, Susan, Deputy Assistant Secretary of Defense for Threat
Reduction, U.S. Department of Defense, prepared statement
of......................................................... 20
Mahley, Donald A., Ambassador, Special Negotiator for
Chemical and Biological Arms Control, Department of State,
prepared statement of...................................... 8
Majak, R. Roger, Assistant Secretary of Commerce for Export
Administration, U.S. Department of Commerce, prepared
statement of............................................... 29
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut, prepared statement of............ 4
THE BIOLOGICAL WEAPON CONVENTION: STATUS AND IMPLICATIONS
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WEDNESDAY, SEPTEMBER 13, 2000
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 10 a.m., in
room 2154, Rayburn House Office Building, Hon. Christopher
Shays (chairman of the subcommittee) presiding.
Present: Representatives Shays and Souder.
Staff present: Lawrence J. Halloran, staff director and
counsel; David Rapallo, minority counsel; and Earley Green,
minority assistant clerk.
Mr. Shays. The hearing will come to order.
Prohibitions against the use of toxic and biologic weapons
have been found in 2000 year old Sanskrit tracts. From the
Middle Ages to the 1925 Geneva Protocol, biological warfare has
been justly condemned by the general opinion of the civilized
world. The 1972 Biological Weapons Convention [BWC], declares
germ warfare ``repugnant to the conscience of mankind.''
But persistent moral and political proscriptions have not
prevented intermittent outbreaks of man-made biological horror.
Each of the 159 nations endorsing the BWC pledged ``never
in any circumstance to develop, produce, stockpile or otherwise
acquire or retain'' microbial or biological agents or the means
to use them in war. Yet the convention contained no
verification or enforcement provisions because biological
weapons were not considered a significant military threat in
the cold war world.
How the world has changed. Iraq's unchecked use of
prohibited weapons of mass destruction against Iran in the
1980's emboldened nations and terrorist organizations who saw
lethal rewards and little risk in the proliferation and use of
chemical and biological arms. The demise of the Soviet Union
revealed a bio-weapons program in direct violation of the BWC
on an almost unimaginable scale.
According to yesterday's Washington Post, surplus Soviet
biological weapons, technology and expertise may yet be made
available to the highest bidder despite U.S. threat reduction
efforts.
Acknowledging the need for a stronger regime to deter and
detect BWC violations, representatives of signatory nations in
1995 began negotiating the terms of a compliance protocol
including declaration, verification and inspection provisions
similar to those contained in the Chemical Weapons Convention
[CWC]. The draft protocol under discussion in Geneva raises,
but does not yet answer, fundamental questions about curbing
the spread of biological weapons.
To what extent is the BWC verifiable? When the same microbe
and the same equipment can be used to make a life saving
vaccine 1 day and a deadly weapon the next, will any protocol
prove more than a temporary nuisance to a determined violator?
Will the uncertain benefits of a traditional arms control
verification system outweigh the certain and substantive
burdens on governments and private enterprises conducting
legitimate medical research and pharmaceutical production
activities?
How can classified material and proprietary business
information be protected from an intrusive inspection regime
some would use to conduct state-sanctioned spying and
industrial espionage?
Recent history offers only partial answers. Efforts by the
United Nations Special Commission, UNSCOM, to inspect Iraqi
bio-weapons facilities demonstrated how easily a focused
enforcement program can be frustrated. Experience to date under
the Chemical Weapons Convention provides some comfort that
procedural and substantive safeguards can work to protect the
rights and the intellectual property of the inspected. But it
remains uncertain whether the same safeguards will work in a
very different setting in which a single microscopic organism
contains the blueprint for a product or process worth hundreds
of millions of dollars.
As the subcommittee begins our consideration of these
important issues today, we are fortunate to be joined by the
lead U.S. negotiator on the BWC protocol, Ambassador Donald
Mahley, and four other wonderful witnesses, three others,
excuse me, who bring a great deal of experience and expertise
to this discussion. We look forward to their testimony.
Regrettably, we are not joined this morning by a
representative from the Pharmaceutical Research and
Manufacturers of America, PhRMA, who declined our invitation to
participate. In working with the administration on these
issues, PhRMA has not been shy about expressing a position in
favor of a more workable, cost-effective process to control
biological weapons.
As world leaders in conquering disease, American
pharmaceutical companies have an unassailably positive role to
play, and an undeniable responsibility to participate, fully an
undeniable responsibility to participate in this discussion. We
trust their timidity will be overcome at a future hearing.
At this time I would like to welcome our four witnesses.
Ambassador Donald Mahley, Special Negotiator for Chemical and
Biological Arms Control, Department of State. Dr. Susan Koch,
Deputy Assistant Secretary, Threat Reduction Policy, Department
of Defense. Mr. Roger Majak, Assistant Secretary, Bureau of
Export Administration, Department of Commerce. Mr. Jack L.
Brock, Jr., Managing Director, Acquisition and Sourcing
Management, General Accounting Office.
We'll go in the order that I announced you. If you would,
I'll invite you to stand. As you know, we swear in all our
witnesses. All the time I've done this there was only one
witness who didn't get sworn in, and that was Senator Byrd, and
I was just plain cowardly. [Laughter.]
[Witnesses sworn.]
Mr. Shays. Note for the record that all have responded in
the affirmative, and I appreciate the other two standing up in
case we need to call on you. So thank you.
Ambassador Mahley, what we do is we put 5 minutes on, and
then we roll over for another 5 minutes. Given that we only
have one panel, I'm sure 10 minutes is enough.
[The prepared statement of Hon. Christopher Shays follows:]
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STATEMENTS OF DONALD A. MAHLEY, AMBASSADOR, SPECIAL NEGOTIATOR
FOR CHEMICAL AND BIOLOGICAL ARMS CONTROL, DEPARTMENT OF STATE;
SUSAN KOCH, DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR THREAT
REDUCTION, U.S. DEPARTMENT OF DEFENSE; R. ROGER MAJAK,
ASSISTANT SECRETARY OF COMMERCE FOR EXPORT ADMINISTRATION, U.S.
DEPARTMENT OF COMMERCE; AND JACK L. BROCK, JR., MANAGING
DIRECTOR, ACQUISITION AND SOURCING MANAGEMENT, U.S. GENERAL
ACCOUNTING OFFICE
Ambassador Mahley. Thank you, Mr. Chairman.
I appreciate the opportunity to testify today on behalf of
the negotiations for a protocol to the Biological Weapons
Convention. I would like for a few minutes to address the
overall objectives of the United States in these negotiations
and current developments in Geneva.
I have also prepared a written statement, which I would
submit for the record if that is acceptable.
The current negotiations have a long history. The issue of
confidence and compliance with the Biological Weapons
Convention has recurred in review conferences and international
fora since the convention entered into force in 1975. The very
fact that there already is a Biological Weapons Convention
shapes the negotiations we are now undertaking. All the
participants in these negotiations have already pledged to
forego offensive biological warfare activities as part of the
basic provisions of the convention.
The current effort is to negotiate a legally binding
document that will be additional to, but not amend or interfere
with, the basic convention. We have drawn heavily on both the
confidence building measures instituted in 1986 and the
multilateral negotiations for a Chemical Weapons Convention
that were completed in 1992. Some of the lessons we have
learned from that experience are very good, some are very
dubious, some apply not at all.
Biology is different from chemistry or from nuclear
physics. The instruments developed in other negotiations, and
even the confidence building measures information from 1986
must be adapted to a rapidly changing environment. We are
attempting to do that in Geneva.
The United States' objective for these negotiations has
been constant. We seek to strengthen confidence and compliance
with the convention by creating a regime that will gather and
process information about activities relevant to the objectives
of the convention. More fundamentally, we seek a regime that
will provide for onsite activities, the most important of which
would be investigations of an alleged violation of the
convention, to deter potential proliferators and complicate
their ability to develop offensive biological weapons programs.
Unfortunately, some other countries in the negotiations
have different priorities. Radical non-aligned states,
particularly, see this as an opportunity to institutionalize
guaranteed access to dual-use technology and material. This
would, of course, undermine current U.S. nonproliferation
programs and policies, as well as those of other like-minded
states. For the United States, that is not an acceptable
element of a protocol.
There are other issues that still defy resolution. We are
fighting very hard to make onsite activities ones that will
provide information but not disproportionately burden the
United States or put at risk either proprietary or national
security information. We have not yet settled on an unambiguous
universe of activities or facilities to be declared.
The United States continues to be actively engaged in the
negotiations in Geneva. We do not believe, however, that an end
game is in the near future. The 1996 Review Conference to the
Biological Weapons Convention set as a target for completion of
the ad hoc group negotiations the next Biological Weapons
Convention Review Conference, which will occur in 2001. The
United States intends to do all it can to accomplish that
target. However, as Secretary Albright informed her allied
counterparts in July, ``The United States will not accept a
protocol that undermines rather than strengthens national and
international efforts to address the biological weapons
threat.''
The United States delegation in Geneva will indeed continue
to exert every effort to shape the emerging document to support
these objectives. We can afford to accept no less.
Thank you, Mr. Chairman.
[The prepared statement of Ambassador Mahley follows:]
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Mr. Shays. Thank you, Ambassador.
Dr. Koch.
Dr. Koch. Thank you, Mr. Chairman.
I, too, appreciate the opportunity to appear before you
today to provide Department of Defense perspectives on the
negotiations for an enforcement protocol for the Biological
Weapons Convention. I have provided a written statement which I
would ask to be submitted for the record.
The Department of Defense fully supports the effort to
achieve a BWC protocol that would assist in our larger effort
to prevent and respond to the proliferation of weapons of mass
destruction. As Ambassador Mahley has described, biological
weapons by their very nature pose a much more difficult arms
control challenge than other technologies, leading to limited
utility for traditional arms control verification tools.
But a BWC protocol can definitely strengthen confidence in
BWC compliance, by enhancing international transparency, and
thus making an important and useful contribution to our
nonproliferation efforts.
In that regard, a protocol must complement the
nonproliferation and counter-proliferation tools that we
already have, and which we are striving to buttress.
Specifically, a protocol must not undermine our own bio-defense
programs or those of our friends or allies, nor must it in any
way weaken the existing system of nationally based export
controls. And finally, we must protect sensitive national
security activities that are not relevant to biological weapons
technology. The Defense Department is confident that current
U.S. negotiating positions in the protocol negotiations
adequately protect these vital national security equities.
If I could briefly discuss the three critical areas of
export controls, bio-defense and related declarations and
onsite activities. First on export controls. Our position on
this aspect of the BWC protocol is unambiguous. Given the
national security importance of effective biological weapons-
related export controls, we would not support a protocol that
proscribes, curtail or otherwise undercuts national export
controls or multilateral political arrangements, such as the
Australia Group.
Second, on biodefense. Despite our best efforts,
nonproliferation and arms control measures will not for the
foreseeable future eradicate the threat of biological weapons
proliferation. Therefore, the Defense Department is focusing an
unprecedented amount of resources on improving U.S. biodefense
capabilities.
Planned DOD expenditures for defense against chemical and
biological weapons will total well over $5 billion for fiscal
years 2002 through 2007 for research, developing, testing,
evaluation and procurement. Our biodefense program focuses on
multiple areas, including collective and individual protection,
detection, treatment and decontamination, and involves numerous
government, contractor and academic facilities of various
sizes.
We have designed our approach to the treatment of
biodefense and associated declarations in a BWC protocol to
meet three basic objectives, in keeping with the size,
importance and purpose of our biodefense programs. First, to
allow consistent accurate implementation; second, to maximize
the likelihood that activities and countries of concern would
be captured; and third, not to reveal gaps and vulnerabilities
in U.S. biodefense efforts and those of our allies.
Closely related to declarations is the issue of onsite
activities, such as visits and investigations. Such onsite
activities are key measures for enhancing transparency. At the
same time, we must protect sensitive national security
activities that may be located in visited facilities or within
investigation areas, but which are not relevant to the BWC.
Here, too, we are confident the current U.S. negotiating
positions will allow us to do this.
DOD has long and extensive experience in implementing
onsite provisions of modern arms control treaties, including
implementation at DOD facilities and protection of national
security assets. Although that experience is not completely
directly transferable to the BWC protocol, some lessons can be
learned, particularly from our experience with the Chemical
Weapons Convention [CWC].
Since the CWC entered into force in 1997, the Organization
for the Prohibition of Chemical Weapons' inspectors have
participated in the United States in 56 inspections at 12
former chemical weapons production facilities, 47 inspections
at 13 chemical weapons storage facilities, 7 inspections at 2
schedule one production facilities, and 1 transparency visit at
a destructionsite. Each of those typically averages 3 to 6
days.
Additionally, there have been 160 rotations of continuous
monitors at chemical weapons destruction facilities, with
monitors typically onsite for 3 to 6 weeks. The sum total of
the monitor rotations and the visits and inspections have been
270 separate onsite activities at DOD facilities from Chemical
Weapons Convention entry into force through the end of August
2000.
There have been no CWC challenge inspections to date, but
the military services have held exercises to test their
preparedness for this possibility. And DOD is organizing a mock
challenge inspection for next year, with actual inspectors from
the Organization for the Prohibition of Chemical Weapons.
To the best of our knowledge, none of these extensive CWC
activities has resulted in any disclosure of sensitive
information, whether inadvertent or otherwise. At the same
time, the costs involved, while hardly insignificant, have
proved less than might have been expected. Between entry into
force in April 1997 and June 1999, which are the most recent
figures available, DOD spent approximately $26 million directly
related to supporting Chemical Weapons Conventions inspections.
All told, total DOD costs for preparation and execution of the
CWC from fiscal year 1992 through fiscal year 2001 amount to
slightly over $518 million.
Under the current U.S. negotiating position, a BWC protocol
would afford to us the same or greater ability to protect
sensitive national security information at lower cost.
Compared to CWC, the onsite activities that the United
States supports for a BWC protocol would be less intrusive,
much fewer in number, smaller in scale, shorter, and spread
among a much larger universe of facilities. While CWC offers a
very interesting basis for comparison with the planned BWC
protocol and gives us many lessons that we can apply to good
use, it's also important to work to understand the differences
between the two, both to assist in developing our negotiating
positions and to prepare for eventual implementation.
Early in the negotiations, in October 1995, DOD conducted a
trial visit of a vaccine facility in the United States. This
trial underscored for us the unique challenges posed in dealing
with dual-use cutting edge biological technologies. Currently,
DOD is preparing to participate in national trial visits and
inspections as mandated by H.R. 3427.
We're well along in our planning, including identifying
funding, appropriate facilities both onsite and analytic
personnel. We hope to conduct an initial transparency visit
exercise later this year or early next year at a DOD facility.
We've also worked to ensure that facilities that are likely
to be affected are fully apprised of negotiating developments.
For example, over the past 2 years, my staff has provided
classified quarterly briefings to representatives from
concerned Defense Department and defense industry
representatives, soliciting their reactions to various
proposals under consideration at the protocol negotiations.
This feedback has helped to shape U.S. Government positions on
issues such as visits and declaration triggers and formats.
In sum, the BWC protocol negotiations are exceptionally
complex. The problem they deal with is unprecedented in its
difficulty. But our prior experience and continual consultation
with concerned U.S. Government and defense industry elements
reinforces our conviction that under the provisions envisioned
in the current U.S. negotiating position, we will effectively
protect our national security interests.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Koch follows:]
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Mr. Shays. Thank you, Dr. Koch.
What I'd like to do, I'd like to get some business out of
the way while we have a member present, so that your statement
can be in the record. 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.
And without objection, so ordered.
And I ask further unanimous consent that all witnesses be
permitted to include their written statement in the record. And
without objection, so ordered.
Mr. Majak, let me just interrupt you as well to welcome Mr.
Souder. Do you have any statement you'd like to make?
Mr. Souder. No, thank you.
Mr. Shays. I think what we will do is we will vote, come
back right away, and that way we can continue with some flow.
I'm sorry, it will probably take us 10 minutes to go vote and
come back.
[Recess.]
Mr. Shays. OK, Mr. Majak, why don't you begin your
testimony.
Mr. Majak. Mr. Chairman, I too thank the subcommittee for
this opportunity to testify on the negotiations relating to a
protocol on the Biological Weapons Convention, and particularly
the potential impact of such a protocol on U.S. industry.
Better international monitoring of activities at biological
facilities throughout the world is of as much potential benefit
to private industry as it is to governments and the public. The
U.S. pharmaceutical and biological industry is devoted to
sustaining and enhancing human and animal life, not threatening
it. An international protocol that would help confirm that U.S.
commercial facilities have no involvement whatsoever with
biological weapons would be an asset for U.S. industry,
especially if there should be an outbreak of disease or some
other indication of biological weapons development or use.
Consequently, we at the Commerce Department and we in the
administration have had a considerable degree of cooperation
from industry regarding both their recommendations and their
concerns about a biological weapons protocol. As has been
noted, the Chemical Weapons Convention is the first such
convention to include inspections in the private industrial
sector.
Although we have learned a good deal about onsite
monitoring and inspection under the CWC, there are significant
differences between chemical and biological agents and their
industrial uses, making the CWC a less than perfect model for a
BWC industrial monitoring protocol. Let me give a few
comparisons that are based upon the 10 chemical industry
inspections we at the Commerce Department have hosted and
managed so far in the United States.
First, confidential business information, the intellectual
property and other information that make U.S. companies
competitive is more pervasive at biological sites than in the
more mature chemical industry. Much information we've found on
chemical production has been published and is already in the
public domain. In chemical plants, CBI is often concentrated in
a particular catalyst or production technique which can be
withheld from inspectors relatively easily.
By contrast, far less biological production information has
been published, and a biological company's confidential
information can be contained, for example, in the very genetic
material of a living organism. Because microorganisms grow and
reproduce and change, simply observing what goes into the plant
and what goes out, which is known in the chemical weapons
inspection business as a mass balance inspection, simply
doesn't work for biological facilities.
So it will be tempting to use more intrusive inspection
techniques, such as sampling. But with a biological sample,
inspectors could have access to intellectual property that a
company and its stockholders have invested huge resources to
develop, and could even reproduce it in large quantities. So
sampling as an inspection technique in biological facilities is
out of the question.
To further complicate matters, biological agents are
naturally occurring. And the equipment capable of developing
and cultivating them is the same as is widely used in such
common industry facilities as breweries, bakeries, waste
management plants and the like. Modern biological facilities
are capable of complete sterilization in a matter of hours,
making discovery of weapons activities extremely difficult.
In short, there are no reliable, tell-tale signs of
biological weapons activities. This makes it difficult to
define and limit the range of facilities that would be covered
by a protocol. In addition, the chances of a false positive
finding is much higher in the biological area. And that's a
great concern, of course, to companies whose good reputations,
which is their most valuable asset, could be falsely tarnished.
These and other obstacles to effective biological weapons
inspections, however, do not mean that a worthwhile BWC
protocol is impossible. There are potential solutions for these
problems, which are mentioned in my full statement. Our
experience with the CWC confirms that it is possible to meet
the requirements of a relatively rigorous international
inspection regime, namely the CWC, without revealing
confidential business information or national security
information.
In the inspections that we have hosted so far, while
inspection issues have arisen, all inspections have been
completed and there have been no findings of non-compliance.
And we have not had to force any company to disclose
information it did not wish to disclose.
But the solution to a biological protocol does not reside
in simply duplicating the CWC. And that is not our goal. Each
regime must be carefully tailored to the realities of the
proliferation threat and the industry to which it is addressed.
The U.S. negotiating position reflects the need to find
solutions to the special problems posed by biological agents
and their production, and Ambassador Mahley has described some
of those. That involves, as he noted, sometimes resisting the
demands of other nations who would seek to impose CWC-like
solutions.
For its part, if authorized and funded by the Congress to
do so, the Commerce Department is prepared to undertake the
same efforts to assist the biological industry that we have
provided and are providing to the chemical industry. And those
are described in further detail in my written statement. The
Commerce Department's mission is to minimize the cost burden
and risk of inspections for the industrial sites being
inspected, to help industrial sites that are subject to
visitors or inspection to protect their confidential business
information while also fully satisfying U.S. treaty obligations
to provide access to those commercial activities.
Mr. Chairman, the stakes in these negotiations are high for
U.S. industry, which is the world's pharmaceutical and
biotechnology leader. We can best assure necessary industry
support for a BWC protocol by building upon the cooperation we
have received and are receiving from industry in the CWC area
and by taking commercial realities fully into account in the
BWC protocol negotiations as we are presently doing.
Thank you.
[The prepared statement of Mr. Majak follows:]
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Mr. Shays. Thank you, Mr. Majak.
Mr. Brock.
Mr. Brock. Thank you very much, Chairman Shays. Good
morning, Mr. Souder.
It's a pleasure to be here. You asked us some time ago to
take a look at the actual experience of the companies that have
gone through an inspection under the Chemical Weapons
Convention. I think the first three witnesses have done a
terrific job of laying out some of the differences between the
industry and those that would participate in the Biological
Weapons Convention and those that participate under the
Chemical Weapons Convention. So I won't elaborate on that as we
did in the statement.
Nevertheless, there are some key similarities. Any
inspection is a burden. It's a burden on the company. The
company is concerned about the release of proprietary
information, the company is concerned about adverse publicity,
and the company is concerned about how much the inspection is
going to cost us.
The inspection process is a burden on the Government. The
Government wants to protect the national interest, protect
national security. So the Government participants at these
inspections also have that burden. And finally, the inspection
organization itself is under a burden, because it's obligated
to see that the terms of the convention are being carried out.
So you have that mutual tension, you have those mutual
concerns. And I think those are shared under both the
Biological Weapons Convention and the Chemical Weapons
Convention. Therefore, I think the experiences of the companies
that have undergone the inspections to date do have some
relevance. There are certainly critical differences, but there
is some relevance and I'd like to briefly discuss that.
The first item you asked us to look at was the release of
proprietary information. The Organization for the Prohibition
of Chemical Weapons has a clearly set-out protocol for what
it's doing to protect the information. The seven companies we
went to all undertook various measures to protect proprietary
information and proprietary processes. They screened
information that was being sent forward to eliminate the
possibility of proprietary information being inadvertently
released, they shrouded equipment that would allow access to
proprietary processes, they took any number of actions. And all
seven were satisfied that they were able to adequately protect
proprietary information, proprietary processes. This appeared
not to be an issue. It was a cost, it was difficult to do, but
nevertheless, it was achievable.
Second, in regard to that, all companies were very, very
satisfied with the assistance that was provided by the
Department of Commerce, and in a couple of instances with the
Department of Defense, in working with them to make sure the
proprietary information was protected. And that was a useful
process in itself.
So to sum up proprietary information, it was the major
concern of the seven companies we went to. And in all seven
instances, they were satisfied that they were able to protect
that information. And let me emphasize, this is the first
seven. It's a very, very small subset of what the ultimate
universe will be.
The second area was that of adverse publicity. No company
wanted their neighbors and their stockholders or other involved
parties to think that they were in fact producing weapons of
mass destruction, that they were endangering the environment or
they were in violation of an international treaty. They all had
varying concerns. Most of the companies we went to wanted to
limit public knowledge that an inspection was taking place. One
company wanted to publicize that the inspection was taking
place. No company thought that adverse publicity resulted from
the inspection process.
And some of them did undertake some steps to limit the
exposure of the inspectors to the community, things like that,
that would limit the ability of outsiders to finding out the
inspection process was taking place. Others didn't do that. It
varied from company to company. But again, bottom line, not one
company felt that any adverse publicity resulted from this. And
that became less of a concern.
The last issue was on cost. The Department of Commerce, in
developing an estimate of the cost burden, estimated that for a
typical inspection, the cost would be about $54,000. We found
that in the ones that reported the cost ranged from about
$6,000 to $107,000.
I gave Mr. Majak a little boost a minute ago talking about
their assistance during the inspection. This was an area that
the companies all had concerns. The guidance on providing cost
information was not very precise. The companies all undertook
different methods and methodologies of reporting cost. These
numbers are not auditable. And we have no certainty that they
represent a true comparison.
Nevertheless, just eyeballing things, they don't seem out
of line with what expected cost would be. But that's something
that Commerce might want to consider in future operations as
being a little bit more specific on the guidance of how costs
should be provided.
The other observations I would like to make is that of the
seven companies that we visited is that it's clear that the
U.S. Government plays a key role in making these inspections
work. As I pointed out a couple of times in my oral statement,
the Department of Commerce and the Defense Department were
instrumental in working with the companies to make sure that
they didn't inadvertently release proprietary information, that
they in fact provided material that was sufficient to ensure
compliance with the convention, but did not go too far.
The Department of Commerce, in addition, held practice
visits, numerous seminars where they were working with people,
and in general, did a very responsible job of assuring that the
inspections went very well. I think one of the things that we
could look forward to in the future in terms of lessons
learned, and particularly in terms of developing the inspection
protocol under the Biological Weapons Convention is that
hopefully the Department of Commerce and the Department of
Defense are getting a lot of lessons learned out of this in
terms of what can be done to alleviate the legitimate concerns
of the pharmaceutical companies that would be subject to
inspection.
That completes my oral summary, Mr. Chairman.
[The prepared statement of Mr. Brock follows:]
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Mr. Shays. Thank you very much.
Mr. Souder has to go back to another two hearings, and will
start off the questions.
Mr. Souder. One of them is a markup on my bill at 11. So I
didn't make an opening statement, I'd like to make a couple of
comments, just a couple of questions. One is, I thank you for
your efforts. I think this is a lot, in my case, like many
Americans, you just kind of hope this stuff gets done. When you
start to learn the details, it's a lot like watching the
sausage being made. Because as you've raised different
questions, you realize the complicated nature, for example, in
biological, I hadn't thought out the differences.
When I was over in the Middle East with this subcommittee a
number of years ago, and the inspectors had just been kicked
out of Iraq and were looking at going back in the next morning,
we had the opportunity to talk to a number of them that night
on looking predominantly at chemical weapons. And it was
incredibly difficult, as they talked about multiple different
places where the precursors may come in. They claimed they were
doing animal research and all this kind of thing, trying to
determine even in something easier to track in a country that's
highly suspected, to say the least. And yet it was very
difficult.
The things you've raised with biological are even more
complex. A couple of general comments, one is that I think
there's an increasing discouragement in America, particularly
after the nuclear secrets question that didn't build trust in
industry that we know how to protect things, if we get that
confidence.
Because if there wasn't espionage and it was incompetence,
that isn't encouraging on proprietary information, whether
disks are left alone and people walk away, we all know how hard
it is, in employees, we all know, to get people who are very
focused and Government pay isn't the highest place right now.
It is something that we have to constantly work at. And I'm
pleased to hear you say that that's a stress. But it must be a
stress. Because right now, if there's a moment when industry is
going to be distrustful, it's right now, in these areas.
Because we haven't been this shaken about our capacity to
protect our utmost secrets, as I would argue we are at this
point, maybe other than during the early development and early
results off the early nuclear arms race.
A second thing is that as somebody who comes from a small
business perspective and has been very defensive of trying to
come up with not under 25 employees, not under 50 employees,
not under 100 employees, certain sales limits, I realize that
one impact is that as Government has proliferated regulations,
has been this whole concept of breaking into subdivisions or
getting in what you call the other categories.
Clearly your example here potentially in breweries is
interesting, because we've seen the whole microbrewery
phenomena and we don't want to inadvertently trigger that which
could cause tremendous complications as we try to address other
pharmaceutical related questions, for example, in Medicare and
in health care, and try to get generic drugs under question,
try to push research in AIDS, and then find out that in the
chemical-biological area, we've put additional costs on.
And one brief comment on the costs, you know, if it's
$6,120, one variation there is, did they assign an intern to
walk with you or the president of the company? How do you
factor in what the different levels of the corporation, their
managers and the time they're spending thinking about what
they're going to do. If we actually put a time value of money
on the corporate executive investments, these costs would soar.
There's direct and indirect.
I'm pleased you're working with industry. It's encouraging
to me that you're trying to address the question.
And one last thing is, do you have any reason to believe
that in chemical and biological proliferation that anywhere in
the world it would actually be facilitated by somebody who was
above-board enough that you could actually do an investigation,
even within a country like the United States? Or is this in
effect more like what I think was in Dr. Koch's testimony,
almost like a good housekeeping seal that in fact assures the
world potentially on liability concerns that these companies
are part of it?
In other words, is there really a reason to believe that in
any country, the people you're investigating and who you can
actually test these things on would be somebody who would be
providing it? Or even if it was that company, that it wouldn't
be a rump sector in it who the corporation wouldn't even know?
Ambassador, would you like to take that?
Ambassador Mahley. Thank you, Mr. Souder. I'll take that
last question, as a matter of fact.
I think the answer is also very complex. But let me try to
sort through it very quickly. First of all, no. Given that all
the people who would be in this protocol are also people that
are parties to the convention, there would be no one who would
be overtly or openly conducting biological weapons activity,
which they would then announce as part of that inspection.
No. 2, they would even necessarily be doing it at some
place that would be a declared facility, that is, some place
that was doing something as a legitimate activity which made
them part of a declaration. That's why we are trying very hard,
in the protocol that we're trying to negotiate, at least, to
make sure investigations are available. Because those are
challenges. If we have indications that some facility is doing
something illicit, that we can go investigate that, even if it
is not a declared facility. But it has to be on the basis that
we have some suspicion there's something illicit going on
there.
Second, in the question of clarification, there are such
things--clarification visits that are a part of one of the
technical aspects, to clarify declarations. One of the
clarifications that we demand be incorporated is the
clarification that says if there was an activity that should
have been declared going on at an installation or facility that
has not been declared, we get to go ask that question, or
rather we get to have the international staff go ask that
question.
So that if they've tried to conduct that kind of activity
and not declare it internationally, we still have the right to
go in and say, what's going on here. Now, that takes care of, I
think, as best you can, the question where somebody's trying to
outright hide it and not say anything about it.
The other question is whether or not there's somebody doing
something that is covert and illicit underneath the cover of
other activities that are going on. Certainly we would not
expect them to come out and tell us that as we went into an
inspection, or as the international staff went into an
inspection. But one of the things that we're trying to do in
terms of the experience we're building up, and in terms,
frankly, of some of the experience that we have from both the
United Nations Special Commission and some of the experience we
have in terms of asking questions, for example, in the former
Soviet Union as a part of a process that we undertook several
years ago, is to find out what kind of things might happen if
someone isn't telling the truth.
There is no guarantee of this. I'm not trying to say that
this is a guarantee, we'll catch them every time. But I can
tell you from personal experience of having been on some of
these kinds of inspections, that when you have people trying to
put up cover stories, having folks onsite asking questions
increases the likelihood that somebody's going to make an
inadvertent statement; increases the likelihood that they're
going to say something which is not logically consistent;
increase the opportunity to make your own observations about
whether or not the conditions you see are consistent with the
story you're being told.
All of those, we believe, are valuable assets in terms of
trying to make a determination about whether or not there is an
illicit activity going on. Again, I want to emphasize, it's not
foolproof. We're not trying to tell you that we can catch it
all. But certainly it is the case that we do not expect people
to come out openly and tell us that they're doing biological
weapons.
Mr. Souder. What seems to be the case, and I'm trying to
sort through, this is a pattern we have in all sorts of
investigations, all sorts of programs in the Government, I've
worked very directly with the illegal narcotics, for example,
ephedrine producers in Mexico, if you see this huge surge, it
leads you to ask certain questions, even if it's a legitimate
use coming in. You wouldn't have apparent that legitimate a use
for that much, because it was a change.
But one of the struggles we have is how much, for example,
in the anti-drug program in schools, how much is spent reaching
kids who aren't as highly at risk versus how much is spent at
risk. And in your comments there, it's difficult for me to sort
out how much of our investigation time is being spent on making
sure our major companies are clean when we don't necessarily
suspect anything versus how much is spent on looking for these
unusual activities that would be a trigger, to look at that.
And as part of that, because we need to show that if we just
look at triggers, that would add additional suspicion and marks
on those companies, and we need to have kind of like
everybody's doing this.
But in the prioritization of, and limited funding, how much
of this is being targeted at least at some element of
questioning versus kind of routine inspections of places that
have too many dollars at risk, really, to necessarily mess with
this right now?
Ambassador Mahley. That's a very good question. And again,
the answer is going to be a little indirect, but I'll try to
make it as brief as I can. First of all, remember that this is
not a case of what we're going to be inspecting. This is a case
of what an international organization is going to be
inspecting.
Second, in terms of what are you going to be doing in terms
of routine activities, one of the things the United States has
made a very strong point about in these negotiations is that we
will not permit this to have a disproportionate burden on the
United States. We are not going to accept a provision, for
example, in which the quantity of declared facilities is going
to be the determinant of how frequently a routine, onsite
activity takes place.
Because we're going to have more facilities to do whatever
kind of activities it is that we describe as being declarable
activities under any protocol that anybody else is going to
have. So therefore, if you did a straight proportion, most of
the inspection time would be spent in the United States. As I
have said in Geneva many times, we're not the problem.
Therefore, that's one in which we have set up ways in which
we spread, by the code word of equitable geographic
distribution, which means you try to make sure this routinized
activity, goes to places where we might have some concerns as
well as to coming to places in the United States.
The second part, though, is that there are two kinds of
activities. There's the routinized activity, clarification
visit or a transparency visit or a familiarization visit,
whatever it may be. Then there's also the investigation. The
investigation, which is the most rigorous of the onsite
activities visualized, is very carefully focused. It does not
occur on a routine basis. It only occurs in response to an
allegation that there may be a concern at a particular
location.
And so therefore, it does not happen at some place except
where a country has made an allegation of some kind of a
violation.
Mr. Souder. I thank you. In looking at something like IRS,
one's an audit, one is a suspect audit, and one is a kind of a
random audit that you come through. But random audits put a lot
of pressure on, too. I appreciate your response and we'll try
to do some followup on bills up in committee.
Mr. Shays. I thank all of you. I would like to just begin
my questioning by, Ambassador, you describing, and Dr. Koch, if
you would like to, what the problem is in terms of just the
threat of biological agents to the world. You didn't speak to
it in your testimony. I'd just like the committee to have a
record of it.
Ambassador Mahley. Thank you. I would like to start out and
then I'll turn it over to Dr. Koch to supplement. The problem
of threat, of biological agents in the world, is in my view,
and I think I can say pretty much the Government's view,
because I think it's consistent with what other agencies, even
intelligence agencies, believe. It is something that could be
done as a covert threat on a very small scale, and still be
very significant. It is something that could be done, frankly,
relatively cheaply.
It is something which could be done inherently within the
infrastructure that any country has available to it for very
legitimate purposes. As I think all of us have said in our
opening testimony, these are truly dual purpose capabilities.
You can make a vaccine 1 day and a weapon the next in the very
same fermenter with the very same building blocks of material.
Anthrax is a classic example of that.
So the threat is ubiquitous in the sense that it goes every
place you can go. It is, we fear, in our assessment,
increasingly in some states of concern a means of trying to
achieve a weapons of mass destruction capability which may be
more covertly available, easier to obtain. And the number of
countries that seem to be interested in this seems to be
growing. So it becomes increasingly attractive.
The other part of it is that there's also a real threat out
there, we believe, from non-government actors, and that is the
terrorist activity. And frankly, we do also believe that the
protocol could be useful in terms of counter-terrorism, in the
sense that one of the requirements we're going to put in it is
the requirement for domestic legislation outlawing such things,
which may actually have the value, at least in countries that
are not countries of concern, of their creating an
infrastructure domestically which will make it more difficult
for a terrorist operation to use them as a base of operations.
So I don't know if that's answered your question or not,
but that's sort of the question about the threat as we kind of
see it out there in the world. And I'll ask Susan if she'd like
to supplement that.
Dr. Koch. I would just endorse what Ambassador Mahley has
said, that the threat is real, the threat is growing, the
threat is very difficult to detect for all the reasons that
Ambassador Mahley described. The concern with the potential
impact of any use of biological weapons, on whatever scale,
against our forces and our population is very real.
Mr. Shays. Well, just to respond, I think both of you have,
in a very concise way, described a gigantic threat. I wouldn't
say this as something to be sensational, but how would we know
or not know the West Nile virus was introduced by accident or
introduced by a terrorist? How would we know that?
Ambassador Mahley. Mr. Chairman, I think to get the best
answer on that, you probably ought to have a more technical
briefing from people who do this for a living, that do
epidemiology, like people from the CDC. But we have had a
number of discussions with those people about this question, so
I'll try to do the best I can as a layman to try to convey some
of their answers.
Mr. Shays. Your answer will probably be more
understandable.
Ambassador Mahley. I won't guarantee that. I never
guarantee my answers are understandable.
There are a number of things that you can look at from an
epidemiological standpoint that would stand out as to whether
or not an incident was something that looked like it was
natural or looked like it was abnormal. We're wrestling with
some of those in the negotiation, for example, because one of
the things that we want to have is an investigation of unusual
or suspicious outbreak of disease. To do that, you have to have
some idea of what would constitute a suspicious outbreak of
disease.
For example, if you have a single source in terms of
tracing back the outbreak, that's one real clue about whether
or not you may have a suspicious outbreak. Because if you've
got multiple source startup at the same time, then that
probably means that there was more than an infected mosquito
that got off an airplane. That would mean that somebody was
spreading for example West Nile virus around in several
locations or by several vectors simultaneously.
The second thing is that you have to look at whether or not
there are some indications that would indicate the distribution
of the outbreak, as in a pattern which might occur as a natural
function, or whether it is a pattern that might occur as an
artificially induced function. Again, the interesting part of
the Sverdlovsk investigation, for example, of the anthrax
outbreak in 1979 in Sverdlovsk, now Yekatrinberg, really got
down to the point of being able to detect that it all had to
have occurred on a single afternoon, and that the afternoon
that it occurred was an afternoon in which the wind direction
was different than it had been for other days. And lo and
behold, that happened to fit the pattern of outbreak.
And as a matter of fact, insofar as you could look at
outbreak that was over a long range, in this case a couple of
hundred kilometers, you would get this outbreak which looked
like it would have had a day or two for the wind to begin to
carry it for the total of 200 kilometers downrange. So there
again, those are the kinds of things that you can look at.
CDC looks at things very carefully with respect to such
elements, I think that you'll find that they've done a very
good job. I'll point to one example, we think there was an
example in the United States of a cult attempting to use
biological weapons in the United States, or trying to test them
up in Oregon in the 1980's, with salmonella. And CDC came up
with a conclusion on that that said it appeared that you had
two simultaneous outbreaks on the same day which were in
different locations and which had different sources. So
therefore it would not have been a single infection source, and
that was what put them onto the thesis it was probably an
artificially introduced disease.
I can't really give you a technical explanation of all the
ways to do that. But there certainly are a lot of ways which we
spent a lot of energy already today on trying to make sure we
have that kind of assessment the best we can.
Can we do it uniquely to say, absolutely, the West Nile
outbreak was not a mistake or an accident some place, but it
was a natural occurrence? I don't think any of my colleagues in
the scientific community would come up and try to give you a
guarantee of that. We'd give you our best scientific evidence.
Mr. Shays. Would anyone else like to respond?
Let me just explain, in a circumstance like this, which I
frankly don't mind one bit, with one questioner, we have the
flexibility to have some interaction. So if I direct a question
to any one of you, I'm happy to have any of you respond.
But I still am going to kind of go in the areas that
Ambassador Mahley and Dr. Koch are more involved in. I think
you both gave me a pretty tremendous answer on what the threat
is. The irony is, not an irony, but the fact is that if the
West Nile virus was in fact a terrorist induced or induced by a
country, this hearing would have 50 cameras and there would be
a line a mile long.
And yet what we're talking about is very real. And the
likelihood that some day we'll be faced with that is very real.
So I consider this an extraordinarily important hearing.
The bottom line to your answer, Ambassador, is that while I
don't suspect, for instance, that it was terrorist induced, we
don't know. But we have indicators that would suggest that it
wasn't. And you're trying to develop, others are trying to
develop as well, and you're trying to make sure we recognize
the need to step in in places around the world where you see
this kind of episode.
This committee, or let me put it this way. I used to chair
the Committee on Human Resources that oversaw all of HHS, CDC,
and National Institutes of Health. Basically my staff came from
that committee. So this is an area that just astounded me,
because I thought, here we're trying to protect from nuclear
and threats by armies, and yet the biggest threat can be by a
virus, the biggest threat can be a health threat. And I realize
more than I ever have the importance of the World Health
Organization and the effort that the U.N. clearly has in
protecting world health.
So we know it's a gigantic threat, we know it can be done
on a small scale, we know it can be done cheaply. We know a
vaccine 1 day can become a weapon the next. We know that the
number of countries are growing, we know that they're becoming
involved in biological weaponry, we know that terrorists are
flirting with this as well. So we know the threat is real, we
know it's growing and we know it's difficult to detect.
Which gets me to the issue of how do we deal with it.
Obviously that's the issue we have. In my statement, I said to
what extent is the BWC verifiable. And I made the same point
that you were making. I guess my problem is, in my heart of
hearts, I don't think it's verifiable. And I almost think,
Ambassador, I'm tempted to think that you are a Don Quixote.
So tell me why this is a worthwhile effort. Let me just
make a point. In your statement, you said, on page 8, and I'm
reading, let me read the whole statement. I don't think that
you read this part of your statement. First of all, this is not
an issue of verification. As you know, the United States has
substantive requirements for attributing effective
verifiability to a treaty. It involves being able to make a
judgment of high confidence in detecting a violation before it
can become a militarily significant threat.
I have already noted that a small program can become a
threat. Likewise, the inherent ``cover'' for an illicit program
in legitimate activity makes differentiation much more
imprecise. And this is the quote: The United States has never,
therefore, judged that the protocol would produce what is to us
an effectively verifiable BWC.
Can you explain that?
Ambassador Mahley. Yes. In order to have an effectively
verifiable convention, we would have to be able to testify with
honesty that we were able to meet those kind of standards about
early detection of any program before it could become a
militarily significant threat. Now, the obstacles to that are
enormous. First of all, very small programs could be militarily
significant. Second of all, they are enormously flexible in
terms of their appearance and disappearance.
Third, as I think the Soviet Union even learned after its
program in the 1960's, a priori stockpiling of biological
weapons is not something that's necessary, because you don't
need that many of them to proceed with implementation. So
therefore, having large stockpiles of weapons sitting around
for a long period of time to detect before you're ready to use
them is not necessarily one of the things that will happen in a
program.
For all these reasons, we simply, and again, I'm basing
this on my colleagues in the intelligence community's
capabilities as well, the United States simply does not assess
that we can gain that kind of confidence and that kind of
information. And we have therefore resisted calling this a
verification protocol or an attempt to make the Biological
Weapons Convention verifiable, because we think that would
indeed be an impossible goal, and it's certainly not something
we're prepared to try to argue in terms of the U.S. Congress
for advice and consent for ratification would be something
we've achieved.
Now, that, however, all is preliminary to the question that
you've actually asked, and that is, therefore, why are we going
about this negotiation and what is the value that we can get
from it. I think the answer to that has got to be again one of
comparative costs and benefits. Certainly if there's a real
risk to U.S. national security or a real risk to serious U.S.
propriety information, then those would be very difficulty
obstacles to overcome.
As I think Dr. Koch and Mr. Majak have testified today, and
certainly as I believe on the basis of the work we've done, the
U.S. negotiating position and what we're after in this protocol
will not put those kinds of national security or proprietary
information values at risk in any extensive forum, and the cost
and burden for the United States will not be excessive.
If one can achieve that, and at the same time increase the
flow of information in some of these areas, then the question
you have to ask yourself is, is that a net benefit to the
United States. Is it of some value in our global effort to try
to prevent biological weapons proliferation. On balance, the
net assessment is yes.
Now, why is that the case? It is the case because again, as
I said to Mr. Souder, we don't expect that people are going to
declare that they're doing biological weapons programs. We do
expect to be able to set down some definable and clear
categories of activity which we hope are going to be the most
relevant to the biological weapons convention objectives.
That's what we're after.
There is another complex problem as a side light, because
what is relevant changes as biotechnology changes. How large a
fermenter, for example, is relevant? A country would declare
every place that's got a fermenter of such a size or larger.
The criterion becomes enormously fungible, as you can do more
and more things in smaller and smaller fermenters.
Nonetheless, if you set down some clear and distinct
activities to declare that means you declare some activities
and some facilities in your country. Those facilities, if
somebody were stupid, could be the places where they could take
advantage of the infrastructure to use the dual capability to
run a covert offensive program.
If they're going to do it that way, then there is always, I
think, the chance that if you go routinely onsite to those
kinds of activities there will be discrepancy which is
observable which will, while it isn't a smoking gun, provide
you with an opportunity to focus your own national assets the
attention of the world on that installation and that activity.
And therefore, that's not a path which the proliferator would
find to be more profitable or easier to follow.
Second, by having categories of things which should be
declared, then you can raise your eyebrows with great interest
if you discover by other means that those same activities are
going on at different locations which have not been declared.
You have to ask yourself the question, why did the owning state
not declare those activities at those locations. So you ask for
clarification.
It's always possible there was a pure oversight, in which
case you will probably find there installation in question
suddenly appears on the declared list. Then you can then either
pay more attention to it in succeeding years or not.
However, you always have the challenge capability to go to
any place that you think some kind of activity which might be
of dubious nature is going on. I don't want to try to leave you
with the impression that we believe we're going to find a
smoking gun, or we're going to walk in or somebody's going to
say, oops, let me get rid of these bombs right quick before we
go on with the inspection.
But challenge is a deterrent threat. Now, is it a deterrent
threat that we believe is capable of precluding someone from
undertaking covert activity? No. But it is a deterrent threat
which makes it more complicated and more expensive for them to
do so.
And in trying to create that kind of a complication, then
it appears to us that we do have the chance of downgrading the
seemingly growing attractiveness of a biological weapons
program as a means of creating a weapons of mass destruction
capability. If you make it more complicatedc and expensive to
go underground because a proliferator must make sure that a
program does not look obvious and therefore might cause
somebody to ask questions, then there is suddenly a greater
complication to any national security equation for creating a
weapons of mass destruction capability for a country.
And that is something which we believe will add to our
other national efforts in terms of trying to counter
proliferation. Now, when I say will ``add to our national
efforts,'' that also becomes then one very important element.
And that is that we cannot allow getting this very modest
international capability in place to detract from, to deflect
or interfere with our own very vigorous national program to try
to reach those same objectives. That's one of the reasons why,
for example, we will not tolerate any interference with our
ability to make our own national decisions about proliferation
questions.
Mr. Shays. In one word, can you summarize what you said, or
in one sentence? [Laughter.]
Ambassador Mahley. I'll try very much, sir.
Mr. Shays. I'm not trying to be cute. I think I want to
tell you what I'd summarize, but I want you to go first.
Ambassador Mahley. The protocol should provide a supplement
to the efforts internationally to stem biological weapons
proliferation by complicating the life of a potential
proliferator. Thank you.
Mr. Shays. My summation would be, from hearing you say it,
it won't do much, but it's better than nothing. And you
explained why it's better than nothing.
Will the record note that his head went up and down, which
means that he concurs with my statement? [Laughter.]
I seem to be focused mostly with you, Ambassador. But let
me just tell you the next question I'd like you to answer, and
then I'm going to ask you, Mr. Brock, to respond. You said in
your spoken statement that CWC lessons, some are good, some are
dubious and some are not at all. I don't know what not at all
means. Good, dubious and no lessons at all. You did say that.
And if you would give me examples of each, and then I'd like
you, Mr. Brock, to respond to it.
Because Mr. Brock, let me be clear. We asked you basically
to look at CWC and see if we could draw some parallels in terms
of costs to business.
And Mr. Majak, I'm basically going to be coming to you to
just understand one, why the pharmaceutical industry may have
chosen not to be here, and then to have you explain to me how
you sort this whole issue out, again, in briefer terms, of
inspection.
And Dr. Koch, you're looking at inspection from the
standpoint of--you're looking at it, Mr. Majak, from
proprietary interests, I think, you're looking at it from a
national interest. I'd love you to be able to, I'm going to be
coming to you to have you explain to me, we don't make
biological agents. So explain to me what we're protecting.
So Ambassador, I'm going to go to you, and then I'm going
to have you, Mr. Brock. I'm just trying to make sure that all
four of you feel engaged here, so you don't fall asleep on me.
I'm engaged.
Examples of good, dubious and there's no comparison. Not
relevant.
Ambassador Mahley. One of the good things I think we got
out of the Chemical Weapons Convention that we're trying to
apply is the principle of managed access. We devised managed
access as a part of the Chemical Weapons Convention
negotiations. Managed access must have a case by case, onsite
negotiated approach to being able to protect sensitive
information not relevant to the object of the inspection. But
nonetheless, you can satisfy the purpose of the investigation
itself.
We have to protect information on a case by case basis. You
can't write in the treaty text that you shall be able to do the
following things for protection. You can give an exemplar list,
which we do. Nonetheless, the answer to that is no, you don't
want to try to make that all the things you can do. So you have
to be able to look at protectioin on a case by case basis.
The principle, I think, very cogently applies in the
biological area as well as the chemical area. And certainly we
are enshrining that very same principle in the negotiations in
the biological convention.
What is dubious? In the Chemical Weapons Convention, you
have a schedule 1 and schedule 2 chemical list. Now, the
schedule 1 and schedule 2 chemical list are pretty much in the
schedule 1, all the chemicals that are known to be chemical
weapons. There may be some speculation about generations of
agents, but nonetheless, these are ones which are either
chemical weapons or immediate precursors and have no commercial
value. So therefore, you subject all their manufacturers to
certain constraints.
Then you have schedule 2 chemicals, and that's a definite
list of chemicals, and that's what all the people who do those,
in terms of production and consumption, are subject to category
2 restrictions.
To try to make a list of biological entities which would
have the same relevance to biological weapons would be
problematic at best and damaging at worst. Because given the
state of biotechnology, given the question about what kind of
objective you have for a biological weapons program, for
example, if you want a military application of biological
weapons, one of the things that we learned when we did our
offensive biological weapons program is that you wanted to make
sure that anything you had as an agent was not contagious.
Because you wanted to make sure that it was applied only to a
specific area for military operations and did not then run
rampant throughout the country in terms of that kind of a
purpose.
If you're a terrorist, you may not care about that. So
therefore, a completely different list of pathogens would be
things that you would look at as high priority agents. So
therefore, trying to make a list such as you did with the
Chemical Weapons Convention is very dubious.
What doesn't apply at all? Again, once you had category 1
and category 2 chemicals in the Chemical Weapons Convention,
you were therefore able to try to categorize all of those
facilities that dealt with those two categories of chemicals
and subject them to routine onsite activity. And that would
pretty much take you through the entire list of capabilities in
a country, commercial or otherwise, in which you had the kind
of high corrosion resistant, high containment chemical reaction
capability which would be most reasonably diverted into a
chemical weapons program if you wanted to do so.
There simply is no such equivalent category of equipment or
of capability in terms of biological weapons. Some, for
example, argue that the most dangerous pathogens have to be
dealt with with maximum biological containment, what we call
BL4. Well, when the United States, again, had an offensive
biological program back in the 1960's. We worked anthrax on the
bench by simply having air containment around the entire
facility and good inoculations of all the people who were
actually working on the program.
So therefore we didn't use maximum biological containment
in that operation. We had no accidents and we had no casualties
from it. And so one could do that, and certainly one could do
that in a covert program if you were prepared to take a little
bit of a risk with your work force, even if you didn't have
vaccinations.
So the idea of having some sort of a categorization such as
that is an example from the Chemical Weapons Convention that
would be very dangerous to apply in the biological weapons
area.
Mr. Shays. Mr. Brock.
Mr. Brock. A couple of points, Mr. Chairman. I think the
inspections at the chemical companies demonstrated that in fact
you can protect the interests of the companies during an
inspection. And the available material that I've read and that
has been provided to us indicates that the industry is
segmented in such a fact that these inspections do give you a
level of assurance that may not be present in a pharmaceutical
interest.
And I was really intrigued by your line of questioning you
just went through when you were talking about what level of
assurance do we have that we if we do the biological
inspections that in fact we're comfortable with our ability to
protect ourselves. And I think there's a real parallel between
that and some of the things that we're looking at in GAO right
now. We're looking at cyberwarfare and cyberterrorism, where
the National Security Agency estimates that over 100 countries
now have the ability to engage in or are developing the
capability to engage in cyberwarfare. Many terrorist groups are
apparently developing capability of committing cyber acts of
terrorism.
The recent I Love You virus which I testified on earlier in
the spring disabled the Centers for Disease Control to the
extent that they said if they had had a major viral outbreak,
they would have had a difficult time dealing with it. In a
situation like that, where it's impossible to do inspections,
the inspections aren't at all feasible, you'll have to do other
things.
You'll have to have intelligence gathering activities that
let you begin to assess what the threat might be and where the
capabilities might lie. You need to think in a very proactive
way about what your reaction might be to that threat if in fact
it was realized, and what your recovery mechanisms would be.
You also have to think about what you might do to investigate
the cause of the action.
And some of the things that people are beginning to do in
cyberterrorism might in fact be relevant to other aspects of
weapons of mass destruction where inspections may not be the
only way you want to have as a way of mitigating risk.
Mr. Shays. Very interesting. In your inspections, Mr.
Brock, you gave a figure of $7,000, I think, to almost
$100,000?
Mr. Brock. Yes.
Mr. Shays. I can't visualize $100,000. I mean, I can
visualize it, but I can't visualize why any inspection would
cost that much.
Mr. Brock. First of all, the company that did it had a very
complete cost accounting system. And only two of the companies
we visited had a cost accounting system that would allow them
to more fully develop the costs that were associated with the
inspection.
Mr. Shays. So you're suggesting that those that were less
didn't maybe capture that full cost. So tell me about $100,000.
What is done? Do people come into a plant and look at the
plant? Why is it $100,000 to welcome them?
Mr. Brock. First of all, some of the plants are more
complex than other plants. The inspection itself is more
complex and lasts longer. So there's a factor of time, how much
time did the inspectors spend there. That's one of the things.
Mr. Shays. This is manhours. So in some cases, are we
looking at an inspection that could take literally weeks?
Mr. Brock. No. There's a limit on the inspection. In this
case, 96 hours. Some companies captured the cost, if they had
to shut down a production line, they would capture that cost.
Some companies engaged outside counsel, because they were
concerned about some of the legal ramifications. Some companies
did more to capture the cost of the pre-inspection visits than
other companies. They were just more complete.
I would suspect, I don't have direct evidence, I would
suspect that if anything, the costs are underreported.
Mr. Shays. It's clear that if you have to shut down
production, then you make the added mistake of hiring lawyers--
[laughter.]
Mr. Majak. Mr. Chairman, since you invited comment from
others, I might comment on that point.
Mr. Shays. The lawyers point? [Laughter.]
Mr. Majak. No, the Commerce Department's point. I'm not a
lawyer and would not presume to make the lawyers comments.
But it was the Commerce Department that issued the
regulations requiring the companies to report their costs, and
we will be submitting to you later in the year under section
309 of the implementing act our data on the costs. And I take
seriously Mr. Brock's recommendation that we look at the
standardization of the accounting methods.
But I should explain that the reason we did not elaborate
on those in the regulations is that we didn't want to force
companies to create an accounting system that they didn't
already have in place, and thereby incur even more costs. So we
tried to leave it flexible for the companies. As a result, some
have very precise cost accounting and others do not.
Certainly if it's the view of the committee and the view of
GAO or others that we ought to standardize those requirements
further, we'd be glad to work with the committee and others to
do that. But I thought I should explain why we didn't spell it
out more precisely.
Mr. Shays. Thank you. It's just that I had an advantage of
going to Geneva and our committee look at what the Ambassador
was doing and to talk to various people who were considering
this issue. So I've had over a year to think about what you all
are trying to do. And it boggles my mind.
And the more I know, the more I'm convinced that while the
cold war is over, the world is a more dangerous place. And it's
more dangerous because small, a small number of individuals can
cause catastrophic harm to people around the world. And it
makes me realize, ironically, why diplomacy is even more
important. And why the ability to do extraordinarily fine
intelligence work is more important.
As it relates to chemical, it's my understanding that if
you inspect a chemical plant, you can't see a quick conversion
to chemical weapon. There are chemical weapons that on the face
can be used by terrorists. When the Colombians lost their
version of their FBI, literally a nine story building was blown
apart, 700 people injured, early part of the last decade, 70
people killed, because a terrorist had a chemical, an
agricultural chemical, that they put in the back inside a bus,
and blew up the bus and it blew the entire building up.
And that's a weapon. It's a chemical weapon, though, that
frankly is just used as an explosive. And so an inspection
would teach you nothing about that.
But let me just get a quick answer to this, and then I'd
like to go to you, Dr. Koch. Can this committee make the
assumption that a biological facility can be converted in the
next day where a chemical plant, if it's trying to weaponize a
chemical, would have to have more time to go back and forth? Is
anyone here capable of answering that?
Mr. Majak. Speaking from the commercial perspective, the
activities that normally take place in commercial plants, I
think you could make that conclusion, that certainly the first
proposition is the case, that many of these plants are designed
in such a way that they can change their production in a very
short period of time, removing all traces of their earlier
production. They do that obviously for legitimate commercial
reasons, because they need to sanitize their facilities before
they start producing something else. But they do have that
capability.
Mr. Shays. I'd like to go to you, Dr. Koch, and if you
would just explain to me, since we don't make biological
weapons, what intelligence are we trying to protect?
Dr. Koch. There are two basic categories of information,
national security information, that we would want to protect
under the measures foreseen in the protocol. The first for
facility visits or investigations, there may within the same
site be one laboratory engaged in activities directly relevant
to the convention and another part of the facility engaged in
something completely unrelated, but potentially quite
sensitive.
This is an issue that we have faced, I think, with most
arms control agreements with which I'm familiar with onsite
inspections where parts of facilities that are engaged in
sensitive activities that have nothing to do with that
particular arms control agreement are protected.
Mr. Shays. Will you state for the record, we don't make
biological weapons?
Dr. Koch. No, we do not.
Mr. Shays. It's clear that a biological plant can be used
to make a weaponized biological agent. What type of facilities
that you can state for the record would our world partners be
interested in inspecting, that is, of an intelligence nature?
Dr. Koch. Well, the first category, as I said, would be
just a universe of facilities where defense work is going on
that has nothing to do with biological issues. The second----
Mr. Shays. Could you be more specific?
Dr. Koch. Anything in the strategic area.
Mr. Shays. Well, they're not going to go to an airplane
plant. What would they rightly say they have the ability to go
to look at a biological agent? I'm looking at the confused
faces and I'm confused too. It seems like a simple question.
Dr. Koch. I would think one example may be, I'm not
certain, for example, at our national laboratories. Some of our
national laboratories are engaged in work related to
biotechnology. They also are obviously engaged in much other
national security work that has nothing to do with it.
Mr. Shays. Ambassador, do you want to add to that? You
answered the question, Dr. Koch, I appreciate that. What would
be another example?
Ambassador Mahley. Let me give you a couple of other
examples. One of them is the fact that with outsourcing, you
frequently have contractors who are using high technology
facilities for a number of different things. If for example one
of the things that we're working on in the biological area is a
very sensitive detection capability, you don't want to have the
knowledge of how far you've gotten with that detection
capability revealed to the international community.
Mr. Shays. That answers my question.
Dr. Koch. That is the second category of areas in
biodefense that might reveal vulnerabilities and gaps.
Mr. Shays. Sorry to interrupt you, Doctor, in your answer,
but that helps some. So those two categories. You're saying
Fort Dietrick would be an example? OK.
I'm inviting the counsels on minority and majority staff to
ask some questions. I'm going to come back. Mr. Halloran will
ask questions.
Mr. Halloran. Thank you.
Ambassador Mahley, if you would describe the kind of
negotiating dynamics in Geneva at this point. There are, in the
course of the 5-years various kinds of blocs of nations have
emerged and various positions have been put on the table. Could
you describe where the current posture of various international
blocs might position themselves as you look toward the eventual
conclusion, whether the United States is getting sort of
isolated in its position at risk of looking like the bad guy
here.
Ambassador Mahley. Well, thank you. I would prefer not to
go into a great amount of speculation about where other
countries are trying to go. But I think the answer I could give
you to that is that the United States, first of all, is in a
unique position in the world with respect to biology, both
commercially and as a matter of defense. I think it's safe to
say that the U.S. biodefense program, for example, probably
constitutes more than half the expenditures in the world for
biodefense.
So therefore, the number of things that we're doing and the
number of places that we're trying to make progress, a lot of
the results of which, as a matter of fact, would eventually be
available to allies as part of defense sharing agreements,
makes us pretty unique. Therefore, we have a range of things
which we are concerned about in that area which some other
countries, even countries from the western group, simply do not
comprehend or do not contemplate. So that makes us, I think,
more isolated than we might otherwise be with respect to the
things that we need to try to defend.
Second, I think that there has been a dynamic in this
negotiation, as I indicated in my statement, and as I indicated
even more, I think, completely in my statement for the record,
of competing objectives, and that is that there are countries
who believe that national security gains from this protocol are
relatively ephemeral and not particularly significant to them
in their own context. In some cases, the United States
disagrees with that, but nonetheless, this is what some of
them, particularly the non-aligned, feel. And that instead,
they see these negotiations as an opportunity to
institutionalize access to technology and access to material
and access to things that they believe are rightfully theirs as
a result of the biotechnology explosion in the world, most of
which is located in western countries.
In the process of that, some of them who have very
legitimate objectives in terms of trying to simply get access
to things they think will be helpful would of course by
institutionalizing it open it up to where countries of concern
would also have guaranteed access to the same kind of dual
capability material. And again, I explained to the chairman
earlier that the whole object from our standpoint is simply to
complicate the life of a proliferator.
Well, one of the other ways you complicate the life of a
proliferator is you complicate that by making it more difficult
for them to get dual capable equipment. That's why we have
export controls and that's why, as a matter of fact, we have
the Australia Group, which does those sorts of things.
Those constitute, bluntly, national decisions, national
decisions reinforced by the decisions of other like-minded
states, which complicate the life of those proliferators.
People view that, particularly among those who are potential
recipients of those kinds of transfers, as being
discriminatory. In some ways, they are discriminatory and
hopefully they're discriminatory against those who have bad
purposes.
At the same time, however, as I say, they don't like the
idea that we make those on a national basis. That objective is
one which we have fought from the beginning of the
negotiations, that we will continue to fight and that we will
not accept an adverse outcome on. And that insofar as we are
prepared to be vocal about that, while others are prepared to
hide behind our skirts, is something which leaves us more
isolated, but it is not something in which we are alone. It is
something in which we have a number of other like-minded
countries who feel equally strongly about the same point, and
that's just a question of what is the nature of the negotiating
dynamic.
Finally, there are, I think, as this hearing has brought
out, an enormous technical complication in terms of how you try
to get things done in biology. And so therefore, there are
still issues in which trying to find clear-cut ways to handle
the concepts that are part of any kind of an arms control
agreement, such as the universe of declared facilities in the
biological field, to make that universe relevant, to make that
universe limited, to make that universe clearly discrete. Those
are issues which are still subject to some technical
description, and in which we have fairly demanding standards.
But again, while I wouldn't say we were pushing the
majority position, I wouldn't say that we were isolated. All of
that is a negotiating dynamic exercised against a statement
made in the 1996 review conference of the states parties to the
Biological Weapons Convention, in which that review conference
encouraged the ad hoc group to complete its work prior to the
next review conference in 2001.
And there are a number of people who believe that is an
absolute deadline, and that therefore, we absolutely have to
try to finish this, and therefore go on, even if it's an
imperfect product, into a conclusion that will occur before
November 2001 when we will have the review conference. The
United States does not agree with that. We certainly think
that's an objective, we certainly think we're prepared to work
very hard toward it.
But we are not prepared to accept an unacceptable protocol,
simply to have something on paper that will be done by that
time. That again is a position which is not universally shared.
So that's the dynamic as best I can describe it. Thank you.
Mr. Halloran. Thank you.
Dr. Koch, in your description of the threat, I don't recall
your mentioning potential leakage of former Soviet technology
or technology from other established countries into states of
concern. Could you elaborate on that in terms of the element of
the threat that you see?
Dr. Koch. That is certainly part of the threat, and we're
engaged very actively with the most directly concerned states
of the former Soviet Union, Russia, Uzbekistan and Kazakhstan,
at the very least to prevent proliferation of such technology.
Mr. Halloran. Reading yesterday's Washington Post story, a
question occurred to me, and I don't want to stray into
classified information, but what is the more near term concern,
the transfer of completed stocks, say, anthrax, for example, or
of technology or expertise?
Dr. Koch. I actually don't think we need to establish that
priority. Because we're trying to work on both. Several
cooperative projects funded by DOD, by State Department,
Agriculture, increasingly HHS, with scientists in the former
Soviet Union to engage them in peaceful work and give them
alternate employment to any proliferation activities, or
offensive, legal offensive activities at home.
And second, security efforts to safeguard the pathogens,
plant, and animal and human pathogens that do exist in former
biological weapons laboratories and that do have legitimate
peaceful purposes. Again, as part of the dual use issue that
we've been talking about for the overall convention, a facility
in Russia can do legitimate work on smallpox. So they need the
physical protection as well.
Mr. Halloran. Thank you. Finally, for Mr. Majak and Mr.
Brock, in terms of CWC inspections you've seen, Mr. Majak, in
your testimony, you said that while the inspection team has
occasionally attempted to probe for information beyond the
bounds of their mandate, most teams so far have had little
difficulty keeping inspections on track. Would you elaborate on
that in terms of what motivated straying from the assigned path
and how it was made right?
Mr. Majak. Yes. The international inspectors have two
purposes. One is to verify what the company has declared it is
doing. The other is to as best they can determine that there
are no schedule 1 materials on the site. Those are basically
their two main goals.
And they probe rather vigorously. They're already well
experienced. Although we've only done 10 inspections in the
United States, these inspectors have done more than 200
inspections in other countries. So they've had a lot of
practice, and they are aggressive in seeking the information
they feel they need to satisfy those two purposes.
The Commerce Department, as the representative of the
national authority, the representative of the U.S. Government
on the site, we have helped the company prepare for those
questions, we have helped them identify what information they
are obligated to provide under the treaty and what information
they are not obligated to provide.
So there have been occurrences already in the first
inspections where the inspectors have, in essence, tested the
company by asking for things that are beyond the requirements
of the treaty, and we have helped the company to fend off those
kinds of inquiries. And the way they are fended off, we try to
find alternative means of satisfying the inspectors. That is,
what is the inspector trying to establish, is there another way
we can do that.
Typically that would be, instead of looking at pipe or
effluent X, we'll give you access to the records of what is
going through that pipe. So we try to find alternative means of
satisfying the inspector without revealing the company's
confidential business information. But it does occur that the
inspectors will ask for information which in our opinion goes
beyond the scope of the treaty. And that's why the Commerce
Department, a representative of the U.S. Government, is
present, to help the company understand that they don't have to
provide that information.
Mr. Brock. Our experience in our actual visits supports
that. The companies themselves are not particularly
sophisticated in what these inspections entail. This is their
first time to do it, and the inspectors are relatively
sophisticated. The companies identified in a couple of examples
where they were preparing to respond to an inspector's inquiry
and representatives from either the Department of Commerce or
the Department of Defense intervened and said that's not
necessary to go to this level of detail, are there alternative
ways of providing that information, because you're in danger of
revealing proprietary information or processes. Which points
out the importance of having absolute assurance that the teams,
the Government teams, continue to be well trained and capable
of providing support to the companies that do not have the
experience to effectively deal with situations like that.
Mr. Halloran. Mr. Majak, are you involved in the
administration preparations for the trial inspections that were
put in the statute last year?
Mr. Majak. Yes, we are. We have been in contact with a
number of private companies and industry associations to try to
line up a facility that is both willing and suitable for a
trial inspection. We were in fact a few weeks ago we thought
relatively close to having such a facility identified.
Unfortunately, in the meantime, the facility was sold to a new
owner and the new owners were less willing to subject
themselves to this than the previous owners.
But we will continue those efforts aggressively in order to
fulfill the mandate of Congress and identify a private facility
where we can conduct a trial investigation or a trial
inspection.
Mr. Halloran. But it doesn't sound like you would have any
results in time to do Ambassador Mahley any good in terms of
the schedule he's on.
Mr. Majak. In terms of the negotiating schedule, you mean?
Mr. Halloran. Yes.
Mr. Majak. Probably not by the November negotiating round,
no, we probably would not meet that. Although we'll make every
effort to hold those trial inspections as soon as possible.
Mr. Halloran. And finally, if I might, Mr. Chairman, as you
described it, Ambassador Mahley, it strikes me that given the
modest goals of such a protocol, that is, to catch stupid
violators and to catch poor, unsophisticated violators with an
inspection regime, that there ought to be a mechanism to avoid
spurious or pernicious accusations of violative conduct.
Where stands the draft protocol at this point on a
threshold mechanism for an investigation?
Ambassador Mahley. I would just add to the idea of catching
the stupid proliferator the idea that it's also hopefully going
to deter and complicate things for the more sophisticated
proliferators, as I said earlier.
Mr. Shays. You didn't make that case very well. [Laughter.]
Ambassador Mahley. But the other thing I would say is that
where we stand on the threshold activity at the moment is that
the draft, as it now stands, says that in order, you know, the
state party to the protocol is one who would have to bring
forth a request for a challenge activity. That challenge
activity would then be reviewed by the executive council.
Now, what the executive council review amounts to is of
course yet undecided. The U.S. position on that in this
negotiation has been since 1998 that one would require that the
executive council, which would be composed of some number of
states parties, would have to by an affirmative vote of 51
percent of those present and voting, approve the request in
order for the investigation to go forward.
That would allow us, we believe, an opportunity, for
example, if there were a spurious request for an investigation,
which is a more intrusive kind of onsite activity than any of
the others contemplated, to be able to present rebuttal
evidence and to be able to determine and make the case if it
were spurious about why this was something that was not
relevant to a biological weapons specification.
Mr. Shays. We're almost done here. Mr. Majak, I'd like you
to tell me what the main points of contention or dispute
affecting a working relationship between industry and the
administration concerning BWC protocol. And I will just give an
editorial comment and I'm sorry I can't ask the industry
itself.
Mr. Majak. Well, first let me say we are in close touch
with the industry, all the agencies at the table. We have an
industry advisor group at the Commerce Department which
includes a number of companies that could be affected by a
protocol, so we're in close touch with them. Using as my guide
the public position that PhRMA has specifically taken on the
protocol, I note that PhRMA supports only at this point a
challenge inspection procedure. It supports declarations that
would not include any confidential business information. It
does not support routine or random visits to facilities. I
think those are the major elements.
It is willing to support purely voluntary educational
visits to facilities. So I think those are the major points
that the industry has publicly endorsed. While I would add one
more, it favors a green light filter, so the necessity for
multi-nation approval of any challenge inspection, I would
defer to Ambassador Mahley to pinpoint where we are exactly in
the negotiations on these points. We are in negotiation on all
of these points, and they change from time to time.
But my understanding is we are consistent with their
position on challenge inspections, and green light filter for
those. I think the negotiations have not yet determined the
scope of the declarations. So it's difficult at this point to
say whether there would be confidential business information
included in the declarations or not. Our position does not
include the use of routine or random visits.
And so I think we are responding in all of these areas to
at least the industry's posture as it's been outlined by PhRMA.
Ambassador Mahley may want to elaborate on that.
Mr. Shays. I'm struck by the fact that the Ambassador has
to negotiate with more than one side.
Ambassador Mahley. Sir, it's a multi-lateral operation.
That's not to be unusual.
Let me simply say to supplement what Roger said, and he's
given you a pretty good summary at the moment, with respect to
the information included in declarations, at the moment, the
position that we have put on the floor is that confidential
business information should not be, repeat, should not be
included in any declaration. And that has fairly wide support
in the ad hoc group. So I think that the idea of deliberately
including confidential business information in the declaration
is probably one that will not be pressed in the end.
Now, there are provisions in the protocol for a regime to
make sure that if confidential business information is given to
the organization, that it will be properly handled, such as in
the Chemical Weapons Convention, there are provisions of
confidentiality for highly sensitive information to be
carefully controlled. At the same time, I think it is the
position of the industry and certainly our position that the
better thing to do with that is not let it out in the first
place.
Mr. Shays. How many facilities, Mr. Majak, are we actually
talking about, or Mr. Brock? How many facilities ultimately
would need to be potentially inspected, or Dr. Koch, if you
want to answer that, who's got the answer?
Mr. Majak. On the commercial side, the industrial side, we
have 81 sites that are subject to inspection, because they are
involved in either schedule 1, schedule 2 or schedule 3. And we
would expect all of those to be inspected over the next couple
of years, initially inspected and in some cases, followup
inspections.
In addition to that, there are something over 600 declared
facilities that declare so-called unscheduled organic
chemicals. And in the long run, because it will take the OPCW,
I think, some time to cover that territory, some or all of
those could be inspected. But we expect the concentration of
the inspections to be on the 81 facilities that are involved in
schedule 1, 2 or 3.
Mr. Shays. Dr. Koch, from the Government side?
Dr. Koch. For Defense Department, for the Chemical Weapons
Convention, there are a total of 32 declared sites.
Mr. Shays. That's chemical?
Dr. Koch. That's chemical. I believe Mr. Majak was speaking
of chemical as well.
Mr. Shays. Were you speaking of chemical?
Mr. Majak. I was speaking of chemical. If I misunderstood
your question--I was speaking of chemical facilities. We don't
have such detailed information on the number of inspectable
facilities in the biological area, because we don't know the
scope of the protocol as well.
Mr. Shays. Ambassador, I must have been enjoying myself too
much in Geneva, but I thought we had talked in the thousands.
What am I mixing up here?
Mr. Majak. Again, speaking on the commercial side, there
was a study done 10 years ago, at the outset of this process,
which tried to estimate how many facilities would have to
declare certain activities. Not all the declared facilities are
inspectable, it depends on the volume of their production and
other considerations.
The number of companies that actually did declare came in
considerably below that, we think because there's been quite a
bit of consolidation in the industry since that study was done.
Some of them who were producing some of these controlled
chemicals that they didn't really need commercially have taken
steps to redesign their process to get out of that production.
So we ended up with somewhat fewer declared companies that we
had predicted 8 or 9 years ago.
Dr. Koch. On the Defense side at this stage, it is quite
difficult to estimate. So much will depend on the basic rules
for declaring facilities. And it is one of many reasons that we
place a high priority on a combination of the kind of activity
going on and the level of effort to make a facility declarable.
Because otherwise, for example, on the level of effort, an
individual university researcher may be doing some relevant
work. And in our view, and under the U.S. position, would not
be declarable. But at this stage, it really is very difficult
to estimate.
Ambassador Mahley. To clarify where we were a year ago in
Geneva and where we are, we have not made a definition yet, or
we have not made a determination yet of what is going to be the
universe of declared facilities. And therefore, we can't make a
prediction about how many of those there will be.
As of a year ago in Geneva, when you were there and we were
talking about that, it was the case that a number of the
declaration criteria which were then being put down on the
floor and being advocated by various countries would have
included thousands, literally, of U.S. installations. You'll
recall earlier that I talked about the idea that there was a
real difference between chemistry and biology here, in the
sense that by getting schedule 1 and schedule 2, all of the
firms that are involved in that, you've pretty much got the
entire universe of those most relevant facilities to chemical
weapons.
In biology, there is no such getting the entire universe.
Because if you try to take all the places that have 50 liter or
more fermenters, then you would indeed have thousands of
facilities in the United States. In Iraq, they had a big
biological weapons program that used principally 50 liter
fermenters. So the issue is there.
So you're going to have to get some subset of that. What
that subset will be and therefore the number of facilities that
would end up being declared in the United States is unknown.
And I would add just one more point. In the currently
envisioned regime, we would not have, even under the most
aggressive proposals, routine inspections of all declared
facilities. There would be some sort of a sampling of declared
facilities. So the inspection liability from the United States
under the worst possible case would be considerably lower than
those that we have in the Chemical Weapons Convention.
Mr. Shays. A deterrent from robbing a bank is that if
you're caught, you might end up going to jail. What's the
deterrent if you make a chemical or biological agent?
Ambassador Mahley. First of all, in terms of the deterrents
of making a chemical or biological agent, I would point out
that we have domestic legislation which is fairly stiff in
terms of doing those sorts of things. Internationally, if you
as a country got caught either in the Chemical Weapons
Convention, or as now proposed in the Biological Weapons
Convention, making an illicit weapon, you could be subject to
some trade restrictions or sanctions.
You could be refereed to the United Nations Security
Council for whatever action the United Nations Security Council
wishes to take against it, and you certainly would lose your
privileges of voting or participation in the executive council
in the organization.
Mr. Shays. You all have been wonderful witnesses. I have
about 7 minutes to get to vote, but I always like to ask the
question, what was the question you were prepared to answer
that you wish I had asked? Any question or final comment? Is
there a question I should have asked? Maybe you weren't even
prepared, that needs to be on the record. Is there any? Any
closing comments?
[No response.]
Mr. Shays. Well, then, we will adjourn this hearing. Thank
you all for participating.
[Whereupon, at 12:15 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
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