THE PROTOCOL TO THE BIOLOGICAL WEAPONS CONVENTION

Testimony by James F. Leonard

Chairman Shays has asked me to address several questions relating to the draft protocol to the Biological Weapons Convention that has been under negotiation in Geneva since 1995. I will begin with the “bottom line” question: Would the completion of this negotiation and the signature, ratification, and bringing into force of a protocol along the lines of the current draft be in the national interest of the United States? Would the protocol enhance our security by making less likely a devastating attack on the United States with biological weapons either by a so-called “rogue state” or by some sub-national terrorist group? These are two forms of the same question, and my answer is clearly and strongly yes, our interests would be served and our security enhanced by the completion of the protocol.

Does this mean that the protocol is perfect, or even perfectly acceptable as it stands, in the draft text that the Chairman of the Ad Hoc Group, Ambassador Tibor Toth, put forward on March 30? Of course not. Drafting a treaty is much like drafting a law, and I doubt if the members of this committee could point to a single law whose text they would all agree is absolutely perfect, totally without a flaw. The successive drafts of a treaty get better and better, but that does not necessarily mean that they approach closer and closer to perfection; rather it means that they approach closer and closer to being acceptable to most of the potential parties. Even the final text that is signed and ratified will have flaws, but it will be accepted if it is seen by a strong consensus as substantially better than no treaty at all.

In one sense a treaty must meet a more demanding standard than a law, since most national legislatures operate by majority rule, while the international community is in the habit of requiring something close to unanimity before it sends treaties up to the U.N. General Assembly and then back to governments for final approval.

What are the potential benefits to our security from the completion of the protocol? The threat of BW attacks is a serious one. You can readily secure witnesses and documents more expert and authoritative than I to describe the threat, but I will simply say that the potential damage to the U.S., despite our high-quality public health system, is comparable to the threat posed by nuclear weapons. Any reduction in that threat is obviously desirable, unless it entails some larger danger to our security, for example by making us less able to defend ourselves or less able to respond to an attack.

Defense against a BW attack is almost entirely a task for each nation’s public health system, and nothing in the draft protocol would impair or impede the development of these defenses. Indeed, by encouraging cooperation with other governments it should enhance our national efforts.

How the U.S. would respond if attacked with biological weapons would be a momentous political-military question for any president. Nothing in the draft protocol would limit the president’s options in any way.

I should note that the United States long ago did renounce one option: the option of retaliating to a BW attack with our biological weapons. We have no biological weapons. President Nixon unilaterally eliminated the possibility of retaliation in his package of decisions on CBW in November 1969, and this renunciation was confirmed by treaty in the Biological Weapons Convention that was brought into force in 1975 during the Ford administration. Apart from that option of retaliation-in-kind, a future president’s hands are free and would not be limited by the draft protocol in any way.

Why do I think that the draft protocol would serve to reduce the BW threat? Would it, for example, enable us to be confident that we would detect in advance a clandestine BW program anywhere in the world so that we could then take pre-emptive action against it? Would the certainty of detection serve to deter anyone from even contemplating a clandestine BW program? The answer to both questions is no, absolutely not.

So if we cannot detect and deter with high confidence, what use is this protocol? Isn’t that what a “verification protocol” is supposed to do?

Let me first note that the U.S. Government has from the beginning refused to call this a “verification protocol.” They have been right to do so. The word ‘verification’ can be defined in many ways. It is common and I think correct in arms control circles to say that verification can never be 100%. But if something is to be called a “verification protocol” then it should provide substantial confidence that cheaters will be caught. That is inherently difficult in the BW field. It is not impossible as we thought in 1970-71 when we were negotiating the BWC, but it is surely very difficult. Even a very intrusive protocol would not give us high confidence, and the draft protocol is less intrusive, less demanding of its potential parties, than it should be.

“High confidence” or “substantial confidence” that cheaters on the protocol would be caught is not attainable in today’s world. But does that mean that the draft protocol would have zero deterrent value? Of course not. Cheaters would naturally try to hide a BW program in an undeclared facility or in a large, legitimate plant. But could they be totally confident that they would not be discovered? Could they be certain that no defector would emerge with incriminating information or even samples? Of course not. Evaluating deterrence requires us to look at the matter not just from our viewpoint but also from the perspective of a government contemplating the development or retention of an illicit BW program. I believe that such a government would simply not join the protocol, rather than trying to outsmart the protocol’s confidence-building regime.

There is in the world today a widespread belief that the United States is omniscient and omnipotent. We know that we are neither, but I am very glad to have our enemies think that we are both. Just as caution and prudence on our side lead us to be reserved about what any verification system can deliver, potential violators will tend to exaggerate and to fear the system’s capabilities. Seen in this light, a BWC with zero verification provisions stands as a sort of open invitation to do BW, while a BWC with a protocol, even if we think it rather weak, is a substantial deterrent.

What about terrorist groups? A treaty is an agreement among governments, and terrorists are not invited to join. A key question here is whether terrorists could develop a serious BW capability without help from any government. This question is much debated and some assert strongly that any well-trained microbiologist, of which there are thousands in the world, could make BW in his or her kitchen. Other expert opinion is much more reserved and argues that the resources that only a government can mobilize are essential. I urge you to seek expert testimony on this point.

There is no disagreement, however, on two related points. One, a terrorist group is far more dangerous if it has even rather modest help from a government. Two, past BW programs, like that in the former Soviet Union, could provide invaluable expertise and invaluable pathogens to terrorists if such leakage were to occur.

The draft protocol has the potential to be helpful on both of the above points. On point one, since the protocol is among governments, any government helping a terrorist group, or even a government failing to uncover and prosecute a terrorist group, would be violating its commitments under the draft protocol. This governmental responsibility to seek out and eliminate any BW activity on its territory can only be a net plus in the struggle against BW terrorism. Governments not joining the protocol would expose themselves to suspicion that they were at least contemplating surreptitious help to terrorists.

Second, the most dangerous reservoir of BW expertise and materiel anywhere in the world is in the former Soviet Union, especially the Russian Federation. Even though Boris Yeltsin acknowledged the massive violation of the BWC of which the Soviet Union was guilty and asserted that it had been terminated, I am not satisfied and I do not believe that there are many experts inside or outside the U.S. Government who are satisfied that there are no pockets of continuing BW activity in Russia in contravention of the BWC.

A trilateral (U.S., U.K., U.S.S.R.) effort to clarify this matter was stalled some years ago. The draft protocol would re-energize such an effort, and a thorough exposure of the facts by the Russian Government should be a condition for our ratification of any protocol. Any “punishment” of the Soviet policymakers who directed their massive treaty violation would be impossible, no matter how desirable, but their successors in power in Moscow must be effectively called to clean up the mess that they were left and to satisfy world opinion on the genuine elimination of any offensive BW program. The draft protocol would provide a framework and a trigger for just such an operation.

An objection often made to the draft protocol is that states of concern--what we used to call rogue states--would simply stay out of the protocol. That is certainly true for some of them. In fact, it is regrettable that only 143 states are currently party to the underlying BW Convention. The non-parties include some states of concern, but it is noteworthy and most unfortunate that some very good friends of the United States, particularly Egypt and Israel, are among the non-parties. The Clinton administration should have carried out a major campaign, joined by our allies, to make membership in the BWC virtually universal. It did not. The Bush administration, which asserts, I believe quite sincerely, that it strongly supports the BWC, should undertake just that sort of effort to universalize the BWC. That would be an appropriate companion piece to an effort to maximize signatures to the BWC protocol when its negotiation has been completed.

A few states will almost certainly stay out of the protocol and even out of the basic BWC. That will tell us where to concentrate our deterrent efforts and our intelligence work, as well as focusing international pressure to join.

I am concerned when some U.S. policymakers seem to suggest that we can best deal with a problem like BW on our own, unilaterally, while letting the rest of the world come up with multilateral measures if they wish. That is simply perverse, and very harmful to our international position.

We are the leader, the most powerful nation, whether we like it or not, and we should welcome opportunities to demonstrate that we understand and accept our responsibilities. Possible proliferation and even use of BW is a global problem, and we should not and cannot opt out of a leadership role in dealing with it.