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Senator THURMOND. Mr. Chairman, I want to congratulate you on the splendid manner in which you have presided over this meeting. I believe this is the first time you have presided over the committee, is it not? Well, you did it like a veteran.

Senator KOHL. Thank you.

Senator THURMOND. I commend you.

Now, I just have very few questions. Ambassador Leonard, as head of the U.S. delegation during the negotiations of the Biological Warfare Convention, you had the opportunity to learn the extent to which other countries have developed biological weapons. From your experience, what is the current situation worldwide regarding the development and production of biological weapons?

Ambassador LEONARD. Senator, I am not the best person to answer that. I think Ambassador Holmes gave you the best answer to that question when he testified earlier. But 20 years ago, it was thought that only a very few countries were interested in this and that the best possible way of discouraging them was to negotiate a treaty which would prohibit it. And I think the fact that it has not-the number of countries that are interested in it is perhaps as low as 10, which was Ambassador Holmes' testimony just a bit ago, is in a way the kind of testimony to the effectiveness of the measures we took at that time.

Senator THURMOND. Thank you.

Mr. Godown, in your prepared statement, you discuss the legitimate research involving biological agents which might be restricted as a result of this legislation.

Will you discuss what, if any, difference there is between the research toxins and agents involved in legitimate biomedical research and biological warfare research.

Mr. GODOWN. It would mainly be-it might be both substance and purpose. Certainly, as I discussed in the testimony, there is work going on with a number of toxins. I discussed the fact that we are making some progress in coming to grips with AIDS through the use of recombinant ONA technology as it applies.

If someone were bent on producing toxins for general warfare purposes, I expect the difference-you probably would not be able to tell outwardly. You would have to have a fairly good investigation that went on and some severe questioning to find out what the intent of the scientist was. The toxin themselves I think would not reveal the intent.

Senator THURMOND. Mr. Godown, you do not disagree with the intent of this legislation's sponsors, as I understand, to limit the threat of biological weapons. Yet, you are concerned that legitimate research may be chilled. Would you discuss what specific changes you would make in this legislation in order to address this concern?

Mr. GODOWN. I think it has to do mainly with the shifting of the burden of proof, or the possible shifting of the burden of proof. In the case where a seizure takes place, if you postulate a scientist has spent a fair amount of time in getting to a given point in his or her scientific research, and for whatever reason this is the time that the Department of Justice decides to, so to speak, spring a trap that they feel that they have enough information to cause them to act. And so with or without a warrant, and that is it seems

to me at issue in this legislation, with or without a warrant they may feel called upon to act precipitously to use the power under section 179, I think it is, to seize and destroy the research materials. Now if they did that and they did so improperly, the fact that the scientist has an affirmative defense that he can make a defense that he was in fact working for a peaceful purpose is not going to do him much good.

So it is terribly important that should this bill become legislation and should the Justice Department act thereunder, it is terribly important that, if I may speak in the vernacular, that they have their act together, that they have their facts straight before they decide to act because the powers that they are given are so pervasive that they literally could destroy a lifetime of research in a very swift period of time and then offer apologies, which would not do much good.

Senator THURMOND. If you have any other suggestions, would you pass them on to the staff?

Mr. GODOWN. Yes, sir, I would, Senator.

Senator THURMOND. Dr. Rosenberg, you have stated that the scientific community has a vital interest in the effectiveness of the Biological Weapons Convention.

In your opinion, does the scientific community support this legislation and do they believe it will have any sort of chilling affect upon legitimate biological research?

Dr. ROSENBERG. Yes, I think there is widespread support in the scientific community. I have not run into any opposition at all, nor any worries about a chilling affect on research.

But just to amplify what Mr. Godown was saying about the difference between legitimate and illegitimate, he mentioned only toxins. In terms of microbiological agents, say bacteria or viruses, I think it might be easier to make a distinction there because there are certain properties that one would look for in a viable weapons agent and it would be quite unlikely that more than one of those properties would be found in something for peaceful purposes.

So if you found the conjunction of several of those properties being engineered into an agent, that might raise suspicions. I think that there would be grounds for doubt and that we could easily tell by looking at the agent being created.

Senator THURMOND. Dr. Rosenberg, in your prepared statement, you stress the fact that the Convention lacks adequate provisions for verification.

Would you discuss what steps can be taken to improve verification so that the United States, by criminalizing production of such weapons, will not be putting the safety of its citizens at risk of foreign attack?

Dr. ROSENBERG. The negotiations currently under way for chemical weapons negotiation I think offer a number of suggestions that would also be applicable to biological verification, and in a sense easier, because biological agents have much less commercial importance than chemical agents in their precursors and there is no need to verify the destruction of stockpiles or production facilities, as there is for chemical agents. The chemical treaty will provide an organization structure which could probably be used or copied.

But in terms of biological agent development or verification to prevent it, openness, I think everyone agrees, is the key and most biological research is already open and published in the open literature.

I think that measure could be-we could require very extensive annual reportage on types of facilities and types of agents handled and that a check could be carried out on the reporting by providing the possibility of inspection, at least occasional and random surprise inspection that would not have to be quite as systematic as the chemical treaty is providing. But that, together with a means of settling disputes such as either challenge inspection or calling upon the Secretary General to investigate, I think would solve most of the problems that are foreseen for biological weapon verification.

Senator THURMOND. I want to express my appreciation to all of you witnesses for coming today and you have added greatly to this hearing.

Thank you, Mr. Chairman.

Senator KOHL. Thank you, Senator Thurmond. And Senator, I want to express my appreciation to you for coming here and staying with us throughout this entire hearing. In addition to adding as much as you obviously did to the hearing in terms of content, it was a special treat for me. I have watched, heard and listened to Senator Thurmond for many, many years as a citizen and I never dreamt that I would be holding a hearing here today and be honored by his presence. So I do appreciate it very much, Senator Thurmond.

Senator THURMOND. Glad to be with you.

Senator KOHL. And I would like to thank you, Ambassador Leonard, and Mr. Godown, and Dr. Rosenberg for being here today.

I understand that Senator Leahy and other senators may have questions that they would like to give you in writing. So I will hold the record open for 5 days for any questions that may be submitted to you and hopefully for your answers.

Ambassador Leonard, did you want to say something?

Ambassador LEONARD. Could I just make a comment on the issue which has received quite a bit of discussion, this burden of proof issue? I am not a lawyer, so I will not get into complexities here.

But it seems to me the relevance there is a relationship between that and the openness, which Dr. Rosenberg and other witnesses, Ambassador Holmes, underlined the utility of glasnost, as Ambassador Holmes called it.

And it is clear that any group or individual who wanted to proceed in a hostile manner toward-for terrorism purposes or whatever would proceed clandestinely. He would not make his activities open or public. And that when a scientist or a company proceeds in an open way, then they are in a way declaring that their activity is something which is legitimate. It seems to me that in that way there could be found a means of reconciling the need for dealing with the terrorist problem with the problem, which Mr. Godown properly draws our attention to, of not placing undue burdens on the researcher of the industrial firm.

Senator KOHL. Thank you, Mr. Ambassador.

Mr. Godown, would you like to make a comment?

Mr. GODOWN. Might I conceivably just add a sentence to what the Ambassador has just said. Obviously, there are many legitimate reasons within the industrial community to proceed, not clandestinely, but to proceed with some secrecy in order to protect your proprietary information on your discoveries until you have time to file your patents and to establish your rights.

And so I am not quite sure how the suggestion that if the work is done openly and freely shared proves that it is for a lawful purpose and if it is otherwise we perhaps have some suspicions. I would not necessarily share those suspicions. There may be good legitimate commercial reasons for the secrecy.

Senator KOHL. OK. Well, thank you very much for your comments. I do appreciate it very much.

Before I close the hearing, I would like to express my personal appreciation to the people in my office who have worked very hard and successfully on this hearing today, that is Jon Leibowitz, Keenen Peck, Tracy Hahn, and Mary Kerr. They have done a great job and I personally do appreciate it.

Our hearing stands adjourned.

[Whereupon, at 4:35 p.m., the committee adjourned.]

University of Illinois
at Urbana-Champaign

89 JUL -6 AM II: 21


The Honorable Herb Kohl
United States Senate
Committee on the Judiciary
Washington, D.C. 20510-6275

College of Law

209 Law Building
504 East Pennsylvania Avenue
Champaign, IL 61820

FAB/ba encl's.

217 333-0931
FAX 217 244-1478

July 5, 1989
Express Mail

Dear Senator Kohl:

Thank you very much for your kind letter of June 30 inviting me to testify before the Senate Judiciary Committee on S. 993, the Biological Weapons Anti-Terrorism Act of 1989. It was most appreciated. I regret to report that I will be unable to appear on that day because of a prior commitment. However, pursuant to your request, enclosed you will find written testimony I have prepared in support of S. 993. In particular, a Supplement to that Testimony contains a detailed analysis of why existing statutes do not provide enough protection against the development of biological weapons. I would greatly appreciate your kind offer to enter my Testimony and Supplement into the record.

Once again I am very sorry I will be unable to testify on July 26. But if there is any way I can be of assistance to you and your staff during the passage of this highly commendable legislation, please feel free to let me know.

Yours very truly,

F~ A. Kayle.

Francis A. Boyle
Professor of Law

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