Senator KOHL. Thank you, Dr. Rosenberg.

Ambassador Leonard, from what you have said today it sounds like we are talking about the kind of legislation that was always contemplated by our negotiators in Geneva. Do you think that is a fair statement?

Ambassador LEONARD. I think it is, Senator, although we did not at that time make any attempt ourselves to imagine what the draft precisely would contain or anything because that varies so much from one country to another.

Senator KOHL. Mr. Ambassador, why do you think it has taken so long for this law to come down the pike?

Ambassador LEONARD. Well, I think, Senator, that there was a period in the late 1970's and early 1980's when the whole question of arms control was under-was very much in question in the public mind and in the minds of the executive branch and the Congress. And there is a long history there, which there is no need to review, but I think that when various members of one or the other body, such as Congressman Rodino, made efforts to bring forward legislation, it never gained very wide support either within the Congress or from the executive branch, and without that support, simply legislation does not go forward.

That has changed and the circumstances-the attitudes of people toward arms control today are very different after the negotiation by President Reagan of the INF Treaty and the very significant achievements that are being seen as complementing our military strength as a way of enhancing our national security.

I think it is very timely now to go forward with this.

Senator KOHL. Do you have any comments or suggestions on the wording in our bill?

Ambassador LEONARD. I have one and a half, Senator, if I might. The first one is that the phrase used in the legislation says that it prohibits developing, possessing and so on for use as a weapon of mass destruction. So far as I know, there is not a precedent in domestic legislation for the use of that language. That is language which occurs over and over again in U.N. resolutions in the General Assembly, but even there it is subject to a considerable, very long and intricate and I think unnecessary controversy over what just what are weapons of mass destruction.

And I notice that in your definition section you do not include any definition, what is a weapon of mass destruction, and it seems to me that perhaps that is opening up an unnecessary legal problem which could be complex in the actual case if one ever actually had to be prosecuted regarding this. But also, it opens up a political loophole or what might be construed as a political loophole that the U.S. is reserving the right for its citizens to engage in the development of biological weapons as long as they are not for mass destruction. And I think you have no such intention, but it seems to me that better language might be available.

I noticed, thanks to Dr. Rosenberg whose tireless efforts on this whole matter certainly deserve commendation, that the British law which corresponds to the law which you are now sponsoring here, uses the language, "for use for hostile purposes or in armed conflict," and that seems to me broader and yet not too broad. It seems to me that it does embrace the problem of terrorism, which I know

is very much on your mind. I just have a question as to whether terrorist groups are necessarily engaged in developing weapons of mass destruction. They may target their hostility much more narrowly.

It seems to me that phrase deserves some reconsideration in working with the executive branch in perfecting the bill.

Senator KOHL. I think that is a good suggestion.

Ambassador LEONARD. The other problem I had not thought of as a problem until the comment which was made here a bit ago by Mr. Noble of the Justice Department. It relates to section 178, paragraph 6, which I guess he correctly said it should be (a)(6), with regard to whether Government entities or Government officials are covered by this action and he suggested for what may be valid reasons that that should be reconsidered.

But I would like to recall an incident that occurred in the early 1970's, which may be forgotten by now, but which attracted quite a bit of attention at the time. It was, as you know, in 1969, President Nixon unilaterally renounced the possession of biological weapons and instructed that all of our weapons be destroyed. And in 1971, we negotiated and brought back a treaty that committed us to that. This all got a great deal of publicity, and if I recall right, an additional Executive Order was issued to reaffirm the destruction of all of our weapons.

But an official in the Central Intelligence Agency happened to have a little bit of biological agent in his office and he thought this was a very bad thing for us to destroy all of this stuff, and he kept it. He kept it for quite a while and it only later became public that he had done so. He was reprimanded and he was disciplined. The stuff was destroyed, but this illustrates how it is possible for people to be misguided, to put it mildly, and to think that their instructions or their duties require them to do things which in fact they should not be doing.

And it seems to me that the criminal proceedings here should be available for possible use against a Government official who wrongly and illegally does something which is in violation of the law which you are putting forward.

Senator KOHL. Thank you, Mr. Leonard.

Mr. Godown, I understand your concern that legislation should not chill legitimate research and development and I share your concern and I do not want to undermine in any way peaceful endeavors.

My question is, would industry feel more secure if we made clear in the legislative history that the bill is not in any way intended to prohibit the kind of research that you have described?

Mr. GODOWN. Senator, I think so definitely. Anything that can add to the record that is being made concerning the intent of what it is that this committee and the Senate in enacting this legislation intends to bring into the law will be helpful.

The fact is that in working with biological toxins a number of key events in cellular metabolism have been uncovered and these have led to some very interesting and promising new therapeutic approaches, and we feel that this is the kind of research which should be allowed to go forward with minimum Federal oversight and interference, if you will, and that is the bottom of our concern.

But, yes, whatever language you could add to the record would be very, very useful.

Senator KOHL. Mr. Godown, the main difference between our bill and H.R. 237, the House equivalent, concerns the burden of proof. H.R. 237 says that in an injunction proceeding the defendant has the burden of proving that conduct is for a peaceful purpose.

Our bill, as you know, does not contain this language. Does IBA have any thoughts on this matter?

Mr. GODOWN. Yes, sir, and I think that S. 993 is superior in that respect, but for the fact that I sat in the hearing room here today and heard the Justice Department witness say that he would like to have a few days to think over your question concerning where the burden lies. I would take even more support or feel even more strongly about the matter.

The problem that we envision possibly coming about is one that you do not intend and we would not intend, but it would be the private investigator-scientific investigator working away and someone mean-spirited and perhaps for his own purposes points a finger and says, "Say that fellow in there with the white coat on has got some toxins in there and he is working on them." Well, those things would be true, but the question is, what is he doing with them? The Justice Department's response to our questions about a possible shifting of the burden and placing the scientist in an untenable position is, given a broad interpretation if you will, trust us. It is our job to enforce the criminal law and we will do a good job. We will not bring a case unless we have substantial evidence and we feel that we can win it. Well, I would like a little bit more than trust on the record and in the legislation.

Senator KOHL. Mr. Godown, from what I understand, it would be difficult for terrorists to genetically engineer a biological weapon. They are more likely to steal a deadly culture from someone who has already got it.

Are the IBA's member companies aware of the need to safeguard dangerous substances? And in general terms, what kinds of security measures do your companies have in place to prevent unauthorized acquisition of toxins?

Mr. GODOWN. Senator, the answer is, yes, they are aware of the need to supply security, and both for public safety reasons and for protecting their commercial property for proprietary reasons. There is security in place at biological-at biotechnology companies and laboratories. I think it would be quite, quite difficult to get into a laboratory and steal a strain of dangerous material. Senator KOHL. Thank you, Mr. Godown.

Mr. GODOWN. Thank you, Senator.

Senator KOHL. Dr. Rosenberg, in your written testimony you refer to "the age of genetic engineering." Have the new genetic techniques made it more important to have a law like S. 993, and if you believe that is true, why?

Dr. ROSENBERG. They certainly have. At the time that the treaty was signed in 1972, I think biological weapons were generally considered to have little or no military interests. And so, the treaty was signed without verification measures for that reason. Subsequent-in fact, it is interesting that in that very year, 1972, the paper that forms the basis for genetic engineering was published

and the new biotechnology developed after that, and as it developed, its military implications became obvious and military interest grew. And now you hear talk about designer weapons and that sort of thing, which has given rise to international suspicions that not knowing what other parties to the treaty may be doing along these lines, raising the need for verification and the need for all types of reassurance of full compliance with the treaty.

And so I think whereas at the time-in 1975, perhaps it was thought that an implementation bill was not really important, I think now the situation has changed dramatically.

Senator KOHL. Dr. Rosenberg, you have spent a good deal of time working with viruses. It is not terribly hard to spread a dangerous substance or to infect someone. Have we just been lucky that no one has attacked our citizens with a deadly germ?

Dr. ROSENBERG. No, I do not think it has been luck. I think we have a good health system in this country and I think any contact with a conventional agent, those that are most easily accessible, would not go very far. I mean you could do some damage, but it would be very limited.

I think the problem with biological weapons is largely in the third world, in the less developed world and in the possibility of an accident involving a novel agent. And the means for creating novel agents have just come about. We have not been living with them for very long. A problem could arise, especially if there were proliferation of these efforts.

Senator KOHL. Dr. Rosenberg, Mr. Godown explained industry's concern about our bill. What about academia? For example, would this bill inhibit a university's search for a cancer cure?

Dr. ROSENBERG. I think any health research, any legitimate health research will clearly fall under the prophylactic protective or other peaceful purposes clause and will easily be seen not to be a knowing development of a means of mass destruction. But aside from that, I have never met a scientist who had any problem with an implementation bill. Most of them applaud it highly, except for one aspect, and that is the burden of proof question.

For example, the American Society for Microbiology, which includes most of the scientists who are doing the type of work that might conceivably be inhibited, was seriously considering endorsement of the bill a couple of years ago when it was introduced in the House, but they were hung up on this burden of proof clause and decided to hold off in the hope that perhaps the Senate would introduce a bill that changed that.

So now I think there is a good chance that they will, but it is a slow process. However, the president of the society is a strong supporter of the bill, as are other officers, and I do not see any problem either among that group or any other.

Senator KOHL. Doctor, is there a consensus within the scientific community about the strength of the BWC? Do scientists think it is still effective?

Dr. ROSENBERG. Well, there is certainly a consensus about its importance and I think that most people think it has been remarkably effective, but certainly the need for strengthening the treaty regime is recognized. I think this bill will help in this country, but

I think that this country also has to push for stronger international measures.

Senator KOHL. Thank you, Dr. Rosenberg.

Senator Thurmond?

Senator THURMOND. Thank you very much, Mr. Chairman.

I ask unanimous consent that the statement by Senator Grassley be placed in the record.

Senator KOHL. Without objection.

[The statement of Senator Grassley follows:]