What do we need to do? We need to persuade states that are not parties to the BWC, particularly states in the Middle East, to renounce biological and toxin weapons. We have expressed our desire to have consultations with the Soviets under Article V of the BWC, and this continues to be our position. We also need to explore possible means for strengthening the international norms against biological weapons.

In addition to ensuring that states fulfill their commitments not to possess biological or toxin weapons, we must persuade additional states to make that important commitment. Currently more than 110 states have renounced biological and toxin weapons by becoming parties to the BWC. Unfortunately, while most states in the Middle East have signed or acceded to the Convention, only about half have ratified it and deposited their instruments of ratification, the legal steps necessary to become full parties to the Convention. A number of these states have said that they will not take these actions until their neighbors do so. We have recently renewed our efforts to bring all states in the Middle East into the BWC. We will persist in this attempt to break the vicious circle.

We are also carefully considering whether export controls could help reinforce our efforts to prevent the acquisition of biological and toxin weapons by other countries. However, the technical problems are daunting, overshadowing even those associated with chemical weapons control. We are examining whether an export control regime analogous to that of the 20 countries belonging to the Australian Group for controlling the export of chemical weapons precursors would be useful, but our preliminary impression is that the problem of identifying BW precursors and production equipment is so difficult that such a regime is not practical. We will be discussing this with key allies who are equally concerned about the proliferation of BW. We are also considering new and innovative approaches to making the international arms control regime for biological weapons more effective. We need to strengthen international reaction to deal effectively with proven violations of the ban on use embodied in the 1925 Geneva Protocol, to include international sanctions. We need additional confidence-building measures to create greater openness about biological activities, such as that practiced by the United States with respect to our defensive research program.

The United States has joined with others at the second review conference in calling for an annual exchange of information on each Party's research activities using the United States' policies on program openness as the standard.

In this

regard, we need to continue programs where researchers from different countries work for extended periods in each other's laboratories. By creating greater openness in these areas, we hope that the norm against biological weapons created by the BWC can be strengthened.

CONCLUSION

We must continue to strive to prevent BW proliferation by reinforcing the moral, legal and political constraints against BW and, where feasible, seek to prevent states from obtaining sensitive materials and technology for BW purposes. This will be a particularly difficult task and, quite frankly, we do not have the answers yet on how to achieve this. We know we cannot do it alone. Our efforts to constrain BW proliferation will require a sustained multilateral approach, involving both U.S. leadership and cooperation with friends and allies. The draft legislation presently under consideration could demonstrate once again our concern and leadership in this area.

Senator KOHL. Thank you, Mr. Ambassador.

Mr. NOBLE.

STATEMENT OF MR. RON NOBLE

Mr. NOBLE. Thank you, Mr. Chairman, for inviting me here today on behalf of the Department of Justice to discuss S. 993, the Biological Weapons Anti-Terrorism Act of 1989.

The Department of Justice supports the thrust of this legislation. Although, fortunately, this country has apparently not experienced the deliberate use on United States soil of biological toxins and weapons as a means of terrorist attack, the potential for such use is clearly present and poses a danger that should be promptly addressed.

One necessary step in enhancing this Nation's ability to deter and punish such behavior is the enactment of strong laws to regulate the development, production, and stockpiling of these extremely hazardous materials.

We believe that S. 993 represents a sound approach to regulating biological weapons without jeopardizing legitimate research and that with relatively minor modifications, some of which I shall suggest below, it will be an effective new tool that would fill a gap in our current statutory arsenal against potential terrorist activities. Under article IV of the International Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and their Destruction, each signatory state has an obligation to take necessary steps to comply with the Convention within its respective jurisdiction.

Although there is some debate as to whether legislation implementing the Convention is still required, it is plain that this bill would fulfill any remaining obligation of the United States to enact such legislation.

We also believe that the bill would be a useful law enforcement measure because it would enable the Department of Justice to prosecute individuals who possess dangerous biological materials for no legitimate purpose without having to wait for the materials

to be misused.

Turning now to our proposed revisions or concerns. The opening clause of section 175 appears to be an effort to give the bill extraterritorial applicability. However, we have some concern with the language in the bill which is not consistent with other portions of title 18, which have extra territorial application.

This area is one that should be studied to determine if there is a more appropriate means of achieving the desired results.

In paragraphs 1 and 2 of section 175, and in paragraphs (a)(1) and (a)(2) of section 176, we would insert "biological" before "agent."

Although the title of the bill and the definitions imply that the bill controls biological as opposed to chemical agents, this needs to be made explicit within the operative language.

We agree with the inherent intent of the bill to reach criminal conduct designed to aid international terrorists organizations and foreign governments. Again, however, we believe the language in the bill may be open to improvement, particularly as regards to

definition of "international organization." We hope to develop a specific proposal for the committee's consideration in this regard. Turning now to the burden of proof, intent, and defenses. We have a number of concerns about the burden of proof, intent, and defense portions of the bill.

While we are, of course, concerned that legitimate research activities not be chilled by an excessively low intent requirement, we are also mindful of the difficulties which are presented to the prosecution when the burden is placed wholly on the government to show criminal intent in the possession type offenses.

We thus believe that those portions of the bill which touch upon these elements, sections 175, 176, and 177, should be very carefully reviewed. Again, we hope to develop specific proposals for the committee's consideration in this regard.

Wiretap predicate; violations of section 175 require the Government to prove the existence of criminal intent. Often, such proof is unavailable except through the use of electronic surveillance or informant information.

Therefore, we recommend that this bill contain a provision amending 18 U.S.C., section 2516 to include violations of section 175 as predicates for court ordered interception of wire, oral or electronic communications.

Regarding forfeiture, section 176 authorizes forfeiture of biological weapons. We strongly recommend that section 176(c) of the bill, which incorporates the forfeiture procedures applicable under 18 U.S.C., Section 924(d) to firearms, be modified to exclude reference to the special proviso under 924(d) which requires that a firearm be returned to the owner or possessor in the event of an acquittal or the dismissal of the indictment.

While this unique provision is arguably justified in the special context of firearms forfeitures, it is clearly inappropriate in our view in the area of biological weapons.

In this area, if the Government can establish its forfeiture case by the necessary standard of proof, the fact that criminal charges have been dismissed or that the defendant was acquitted should not defeat forfeiture and thereby cause dangerous materials to have to be returned to their owner.

Moreover, consideration should be given to amending section 176(c) to incorporate other forfeiture schemes such as those relating to controlled substances with which the Department of Justice is more familiar.

The section currently referenced by S. 993, 18 U.S.C., 924(d), essentially adopts the forfeiture procedures applicable under the Internal Revenue Code, provisions which are enforced by the Department of Treasury.

This concludes my statement. I will be glad to address any specific questions the committee may have.

[The statement of Mr. Noble follows:]