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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

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


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, I 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?


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

assign to treaty obligations within their own domestic legal systems, it, therefore, was desirable to complement the prohibitions and the undertakings of the first three articles of the treaty with the sort of provision that became article IV.

This article, as been noted by the previous witnesses, adds to the obligations of those first three articles, which are accepted by the states' party to the treaty, by committing them also to put these obligations on their citizens and their residents.

Thus, not only the U.S. Government is barred by the treaty from developing biological weapons, it is also committed to bar its citizens from doing so.

The treaty calls on each party to take this additional action in accordance with its constitutional processes. In our case, of course, this means a law passed by the Congress and signed by the President.

It is not, Mr. Chairman, I think an optional action. It could have been made optional by using the word "may" rather than "shall" in the text of article IV. But the use of the word "shall" was not accidental. It was not simply something that we dreamed up on the spur of the moment there in Geneva. It was used under clear instructions from the Secretary of State, instructions which had been reviewed and had been approved by all the relevant agencies of the U.S. Government.

In fact, it was far from controversial. Within the U.S. Government, was actively desired by us because there was feeling with some officials within the U.S. Government that perhaps the Soviet Union or some other government might take advantage of any loophole that there was in the treaty and utilize it, and article IV was seen as sealing off a possible loophole.

Others will, as they have told you here this afternoon, will provide detailed comment on the text of the treaty. I do have one or two thoughts on that, which perhaps we could get to after we have presented our prepared statements here.

But I would like to offer a concluding comment which comes from someone who spent his life more or less as a professional negotiator. I think there are a couple of basic rules if you are going to be a good negotiator and one of them is never to bluff, by which I mean never to make threats that you cannot carry out. And the other side of that is never to over promise and promise to do things that you or your government are not going to be able to follow through on.

You can get away with that kind of stuff for a time, but then your credibility will erode and eventually disappear and that applies to a nation. And it is for that reason that I take very seriously the failure of the United States now more than 10 years after the negotiation of this treaty, 20 years from the time we began actively to work on it, to follow through on the commitment of article IV.

This moreover has a current aspect to it. The U.S. Government wants very badly a treaty which will follow up on the Biological Weapons Treaty and will prohibit possession of chemical weapons. I think there is virtual unanimity on this subject and I noted recently the letter which 73 members of the Senate signed to encourage the President to proceed expeditiously on that negotiation.

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