even if this legislation were not required by the 1972 convention, we would still be wise to enact the bill to help combat terrorism. Surprisingly, there is no uniform

statute that criminalizes the development of biological devices or organisms that are meant to kill others. We cannot rely on existing statutes that may arguably regulate one or another aspect of the problem for instance, the Toxic Substances Control Act. The prospects of biological terrorism are too ghastly to permit a loophole in our law."

In the recent past, the Executive Branch view has been that no implementing legislation is required. That judgment primarily was based on the perception that potential violators were likely to be States rather than commercial firms or private However, even in the last few years, two

individuals.

most

developments have occurred to lead us to conclude that legislation probably is desirable. These are the explosion of biotechnology, in both basic research and applied technology,

and the apparent interest in obtaining BW capabilities

demonstrated by several nations.

- 3

this

are, in part,

We thus have a convergence and mutuality of interests on type of legislation. The draft legislation before this Committee and its House counterpart, H.R. 237, patterned after BWC legislation first proposed by the Executive Branch in 1973, after the BWC was signed but before the Senate consented to its ratification.

Some related legislation, such as the Toxic Substances Control Act, has been enacted. However, so much as changed since 1973, we need a cooperative effort to best satisfy all our concerns; the biotechnology explosion, deterring harmful biological traffic and terrorism, applying domestic criminal sanctions, and doing all we can to curtail the international proliferation of biological weapon capabilities. The last is ACDA's

principal concern, but we stand ready to work with you and

other agencies to build upon S. 993 in a way best suited to

multiple needs in a world of rapid biological technology evolution.

Senator KOHL. Thank you, Mr. Graham.

Before we proceed to questions, I would just like to say that I appreciate very much, gentlemen, your endorsement of this legislation.

President Bush has expressed his desire to rid the planet of chemical and biological weapons, and I am glad the administration sees our bill as part of that effort.

And if the bill needs some fine tuning, I look forward to working with you on that.

Ambassador Holmes, I would like to ask you about the prospects of bioterrorism. In your prepared testimony, you say "it may be only a matter of time" before terrorists use these weapons.

Just how serious of a threat do you regard bioterrorism?

Ambassador HOLMES. Well, we regard it, Mr. Chairman, as a threat because of the difficulty in identifying the precursors, the substances which canvas one of your two colleagues from the House noted, a very minute amount of a disease or a toxic poison can have disastrous effects on a wide scale.

So even though, as I said in my testimony, we do not have any evidence indicating that terrorists have acquired some of the more sophisticated methods for delivering these kinds of deadly materials, air assault bombs and that kind of thing, nor do we have evidence that any particular country advocating terrorism has delivered these materials to terrorists, given the stealth with which this material can be developed and hidden and used, we do consider it a serious potential threat.

Senator KOHL. Ambassador Holmes, in your testimony you said that, "a number of countries are working on biological weapons. Last May, at a Governmental Affairs hearing, the Defense Department said there are at least 10 countries believed to be developing such weapons. Is that figure still accurate, and can you tell us which countries?

Ambassador HOLMES. I believe that figure is still accurate, although I have not had an intelligence briefing on that recently in the last several weeks. And I would prefer not to mention-it is known, of course-that we consider the Soviet Union to have this capability. We have published that in the President's Arms Control Compliance Report to Congress, but as far as the other countries are concerned, this is based on very sensitive intelligence sources and methods and I would respectfully refer you and the committee to perhaps a closed hearing by the intelligence community on those other countries.

Senator KOHL. Do you think that passage of this legislation would encourage the Soviet Union to stop their capability?

Ambassador HOLMES. I think that plus continued diplomatic efforts on our part to engage the Soviets in article V discussions should have that effect. We have been pursuing this with the Soviets for some time, as you know, and this is continuing. We are having exchanges with them about this subject and what we are trying to do is to encourage them to use the same glasnost, to use their word, that we have demonstrated in the way we have exposed our legitimate activities in the laboratory for defensive purposes to public scrutiny. And this process has begun in part as a result of the Second Review Conference in 1986. We have already exchanged

some information. I think last year we identified, for example, a total of six laboratories of which two are defense related, while the Soviets listed 16 such facilities, five of which are defense related.

But we want to pursue questions with them under article V, both with respect to Sverdlovsk and also to acquire-to encourage them to be as open about the activities at those laboratories as we have been about our laboratories.

Senator KOHL. Ambassador Holmes, CPA Director Webster has identified some of the nations building chemical weapons. He did this to bring world pressure to bear on these nations.

Do you think it would make sense to identify the nations working on biological weapons to put the same kind of pressure on them?

Ambassador HOLMES. It is possible that this would be useful to do under certain circumstances, but again, I would not like to make a definitive judgment on that without having the advice of the intelligence community on this subject.

Senator KоHL. Thank you.

Mr. Noble, you have made a number of suggestions for improving the bill and we appreciate that. We understand that all of the interested agencies met yesterday to discuss some of your ideas.

How soon do you think Justice and the other departments can get us some specific proposals?

Mr. NOBLE. It is our goal that we would work during the next several weeks with that as an objective that perhaps at the conclusion of 1 or 2 weeks we would have some very specific recommendations for this committee's consideration.

Senator KOHL. Ambassador Holmes, do you think that is a reasonable timetable?

Ambassador HOLMES. I think I would defer to the Justice Department on that.

Mr. NOBLE. I believe it is a reasonable timetable. [Laughter.]
Senator KOHL. Well, we will accept that.

Mr. Noble, Congress I am sure would not want to chill legitimate research in any way. Is the bill's purpose clear enough—that Justice should not prosecute those engaged in medical or agricultural research?

Mr. NOBLE. Yes, I believe that the bill is expressly clear that the target of this bill is biological agents or toxins for use as a weapon of mass destruction, not for research, but for use as a weapon of mass destruction.

Whether we are pursuing a criminal prosecution or a seizure or forfeiture, we are going to have to satisfy that element and it is a very difficult element to satisfy and well it should be, because the activity we are trying to eliminate is very, dangerous activity. You can be assured that the Justice Department will take great care in investigating cases that might fall under the jurisdiction of this particular statute.

For reasons that are very obvious, it is not the kind of investigation that one would pursue casually or with a cavalier attitude. Our major objective is consistent with that of this committee and the Chairman and that is to ensure that our society is protected from individuals or entities or organizations who knowingly devel

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?