op biological toxins or agents for use as weapons of mass destruction.

Senator KOHL. Thank you.

Mr. Noble, there is one substantive difference between our bill and Congressman Kastenmeier's. H.R. 237 says that in civil injunction proceedings defendants have the burden of proving that their conduct is for a peaceful purpose. We have removed this language. So our question, Mr. Noble, is which approach does the Justice Department prefer?

Mr. NOBLE. Mr. Chairman, that was one of the issues that we discussed yesterday and I would appreciate if this committee would give us some time to give that some more thought.

One of the things we were considering was whether the intent of this committee was to in fact have a different standard from the House bill.

We certainly are aware that the word "affirmative" is not in your bill. We were not clear whether that was your intention or whether you thought it was clear that an affirmative offense would be what was required without it being expressly stated.

But certainly in our specific recommendations we will address that very critical issue.

Senator KOHL. Mr. Graham, it is my understanding that many treaties are followed by legislation that conforms our domestic law to our international obligation.

In your opinion, does article IV of the Biological Weapons Convention require something like S. 993?

Mr. GRAHAM. Well, it is perhaps, Mr. Chairman, debatable whether it actually requires something precisely like S. 993. Clearly, it contemplates that domestic legislation will be enacted. It is arguable to what degree this requirement has been met in the past by statutes referred to in the testimony today, the Toxic Substance Act and so forth, but certainly the enactment of S. 993 would be a very positive step as far as U.S. implementation of article IV is concerned.

Senator KOHL. Mr. Graham, in 1986, parties to the BWC held a second international conference to review the treaty. The conference called on governments to enact measures that would guarantee compliance within each nation's own territory.

There will be a Third Review Conference in 1991. Our question is, when the United States goes back to Geneva, will we be in a better position to urge compliance by other nations if we have enacted this legislation?

Mr. GRAHAM. In my judgment, we would be in a better situation at the 1991 Review Conference with this legislation on the books. Senator KOHL. Mr. Graham, do you have any thoughts on our bill's wording?

Mr. GRAHAM. Well, in general, I would defer to the Department of Justice on this. I attended the meeting yesterday. It would appear that some changes are in order. We will-all of us in the executive branch will work on this. I think it is a very good foundation on which to build and probably with just a few changes here and there it will be in proper shape for enactment. Senator KOHL. Thank you, Mr. Graham.

Senator Thurmond?

Senator THURMOND. Thank you, Mr. Chairman.

Ambassador Holmes, new technology has significantly complicated verification of the Biological Weapons Convention. In addition, you note that the Soviets have never acknowledged having a biological weapons program.

In your opinion, how will we be able to improve verification worldwide, especially with respect to the Soviets who claim not to have any such program?

Ambassador HOLMES. Senator, you have put your finger, I think, on one of the weaknesses of the 1972 Convention, which has no verification provisions. This was at that time an extremely difficult problem to deal with, primarily because the substances involved, the precursors are dual-use substances that have legitimate purposes as well as possible deadly purposes and you have pointed toward the biotechnological revolution and the development of novel agents. This compounds the difficulty of verification and I have to be frank with you in saying that we have no ready solution to this problem, but we do believe that it is important.

The one instrument we have is the light of public exposure. We think it is very important to bring increasingly into the open the activities in this field which are supposed to be legitimate for defense purposes and medical purposes, so as to increase the possibility that any illegitimate activity would be more easily discovered. Now as far as the Soviets are concerned, they have never admitted that they have such a program, but we intend to continue pushing them in our exchanges to answer the questions to which we have never had satisfactory responses with respect, first, to the outbreak of pulmonary anthrax in the Sverdlovsk in 1979 and also related questions with respect to the laboratories which they have identified in their reports called for in the 1986 Review Conference. Senator THURMOND. Mr. Graham, the proposed legislation addresses the use of biological weapons and related agents. It would prohibit the production of material which could be supplied to terrorist organizations and nations which support terrorism.

Would you discuss the effect this legislation would have on our national security?

Mr. GRAHAM. Senator Thurmond, any step that we can take which will diminish the terrorist threat would add to U.S. national security. In that regard, I believe this legislation would be helpful in strengthening our security.

Senator THURMOND. Mr. Noble.

Mr. NOBLE. Good afternoon, Senator.

Senator THURMOND. In your prepared statement, you state that the Department of Justice supports the thrust of this legislation. Please discuss whether this legislation would prohibit the Defense Department's research into biological weapons, which has been intended to be purely defensive.

Mr. NOBLE. Mr. Thurmond, in the Department's view, this would not prohibit or chill legitimate research. The way the language of the bill is crafted, we believe it focuses on use as a weapon of mass destruction. And that, in and of itself, will prevent legitimate research from being chilled in the view of the Department, especially when you couple it with the discretion that the Department of Jus

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tice exercises in prosecutions, seizures, or forfeitures that it pur

sues.

Senator THURMOND. Mr. Noble, the Department of Justice has recommended changes to this legislation, and would you discuss the Department's recommendation that the bill contain a provision to provide for court ordered wiretaps?

In addition, would you discuss the Department's concerns surrounding the current burden of proof and defense portions of the bill?

Mr. NOBLE. Regarding the use of wiretaps, it is very important when you are investigating cases that might have a terrorist component that you have the most surreptitious means available to you in order to investigate the case for purposes of prosecution.

For that reason, we would really, request or encourage that serious consideration be given to including this as a predicate for wiretaps.

Some of the most important cases that the Department of Justice has made have come as a result of court authorized wiretaps.

Concerning the defenses that are available, without answering the question as to what the ultimate recommendation will be, would just highlight for the committee concerns that could be raised.

Let me give you the following scenario. Let us assume that the United States, through sensitive intelligence or source methods, are able to retrieve information suggesting various individuals are contemplating stockpiling or developing biological weapons for use as a weapon of mass destruction.

We know that because of the way we retrieve the information or because of sources that have given us the information that we might not be able to expose those individuals or those methods to public disclosure that would be required in the context of a criminal prosecution or court prosecution.

Nonetheless, while concealing their identity, we may be able to seize the biological weapons and neutralize the situation, shifting the burden to the individuals to demonstrate by a preponderance of the evidence or whatever the appropriate standard is that in fact the weapon, so called weapon, is not a weapon and it is not an agent or toxin that exists by reason of conduct for use as a weapon of mass destruction or/and it is primarily useful as a weapon mean as a primarily useful in a peace context or a peaceful context.

Our concern is that we may not be able to fully litigate issues if the burden is completely on us and we may not be able to neutralize situations that you would want us to neutralize. That is one of the concerns that we hope to address and resolve and come back to this committee with a specific recommendation as to whether the defense provision should be a general defense provision or whether it should be an affirmative defense provision.

Senator THURMOND. I want to thank you witnesses very much. That is all the questions I have, Mr. Chairman.

Senator KOHL. Mr. Noble, I would like to follow up on your hypothetical. Do we shift the burden of proof in other areas of the law? Is there a precedent?

Mr. NOBLE. Affirmative defenses-it is a rare case. I want to be very candid. It is a rare case where the defendant has a burden to

come forward and persuade the decision maker. I just want to highlight one point. As it is currently framed, in the criminal context the Government still has the burden to prove beyond a reasonable doubt that the agent or toxin or delivery system is going to be used or it is being held or possessed for use as a weapon of mass destruction. We have to prove that beyond a reasonable doubt in order to convict someone criminally.

So in that situation, they would not have to come forward with any defense. We have to prove that its use would be as a weapon of mass destruction.

What I am concerned about am just raising the concern without reaching a conclusions the context of the seizure or forfeiture provision. We are not seeking criminal prosecution. You are seeking to neutralize a situation and in doing so you go to a magistrate, or if you have reason to observe it, you go with probable cause. You neutralize the situation and then it is litigated as to whether or not its use is as a weapon or there is some peaceful purpose for it.

We believe any organization or any entity, assuming this were the conclusion, could come forward and say, "We are doing this project for this particular corporation. We have these legitimate objectives that we are seeking to achieve." But with a person wholet us say there is some crazy person out there who is very, adept at developing biological weapons, but let us say the person just wants to develop them and possess them, not for use as a weapon of mass destruction, but just because the person is a quirk and wants to collect them, in that situation the Government should be able to seize it, shift the burden on to the person to just come forward and persuade by a preponderance of evidence more likely than not that its primary use would be for a peaceful purpose and not as a weapon of mass destruction.

These are just concerns that I raise that we have been debating within the executive branch and we hope to come to a resolution of it and make a specific recommendation to this committee.

Overall, we think it is a very good bill and a very necessary bill. Senator KOHL. I would like to mention that the Department of Defense had the opportunity to testify this afternoon and they decided not to do so. I am told that representatives from the Pentagon are in the audience, and I want to make it clear on the record that S. 993 would not affect the biological defense research activities at Fort Derrick. Senator Pryor and I have made this point before, and this remains our objective.

Ambassador Holmes, Mr. Graham, Mr. Noble, I would like to thank you very much for appearing here this afternoon. You have been excellent witnesses and we look forward to working with you to the consummation of the bill. Thank you very much for coming. Before we get to the next panel, I want to use this opportunity to insert some items into the hearing record.

First, I think it is important that we include a copy of the BWC itself. Second, I received letters from prominent individuals and organizations that support this bill. For example, the American Public Health Association has written on behalf of its 55,000 members. I would like to insert these materials at the end of the record, along with a copy of S. 993.

I also want to include some important written testimony from Francis Boyle, a professor of international law at the University of Illinois. I invited Professor Boyle to be with us this afternoon, but we was unable to make it. However, he submitted his analysis for the record. Professor Boyle has studied existing laws that touch on the problem of bioweapons. He concludes that they are inadequate to the task. If there is no objection, I will put this too at the conclusion of the record.

And now we would like to get on with our third panel. Our first witness is Ambassador James Leonard, who headed the U.S. delegation that negotiated the Biological Weapons Convention in Geneva. This was in 1970. Ambassador Leonard worked for 21 years in the State Department and he participated in the Middle East peace talks.

With him is Richard Godown, the President of the Industrial Biotechnology Association. IBA is an organization that represents almost 100 biotechnology companies. Mr. Godown is an attorney and has been with the IBA since 1985.

And finally, we have Dr. Barbara Rosenberg, a Molecular Biologist at the Memorial Sloan-Kettering Institute for Cancer Research. Dr. Rosenberg is a professor of environmental science at the State University of New York and she has written numerous articles about biological weapons.

I want to welcome you all and thank you for your patience. Again, I would appreciate it if witnesses could summarize their testimony in 5 minutes, and we will put your written statements into the record.

Ambassador Leonard, would you like to begin?

STATEMENT OF AMBASSADOR JAMES F. LEONARD, HEAD OF DELEGATION, BIOLOGICAL WEAPONS CONVENTION NEGOTIATIONS; RICHARD GODOWN, PRESIDENT, INDUSTRIAL BIOTECHNOLOGY ASSOCIATION; AND DR. BARBARA HATCH ROSENBERG, MOLECULAR BIOLOGIST, MEMORIAL SLOAN-KETTERING INSTITUTE FOR CANCER RESEARCH

Ambassador LEONARD. Thank you very much, Mr. Chairman. Mr. Chairman, I want to support the enactment by the Congress of legislation to implement the Biological Weapons Convention. The argument is very simple. We committed ourselves in the treaty negotiations to action along these lines and we ought to keep our commitment.

I was, as you have noted, the head of the U.S. delegation during these negotiations, and a number of aspects of this Convention were in fact quite controversial at that time and some of them have become even more controversial since then.

A good bit of this record is summarized in the written testimony of Ambassador Holmes, which you have.

This particular provision, however, was not controversial in 1970 or 1971 when we were negotiating and it has not been controversial since then.

There was a consensus among the negotiating parties that because we have very different political and legal systems and no two national systems are precisely identical in the force that they