The Legality of the Biological Defense Research Program JOHN QUIGLEY College of LAW Ohio State University 1659 North HI& Street Columbus, Ohio 43210 The 1972 Biological Weapons Convention aimed to eliminate biological and toxin weapons from the military arsenals of the States of the world.’ Prior law, represented by the 1925 Geneva Protocol on gas warfare, The 1972 Conprohibited the use of such agents against an adver~ary.~,~ vention, whose full title is the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriologcal (Biological)and Toxin Weapons and on Their Destruction, went further: it outlawed the development, production, stockpiling, acquisition, or retention of such weapons, or of delivery systems for their use. With one cmeut explored below, the Convention’s Article I prohibited the development, production, stockpiling, acquisition, or retention of “microbial or other biological agents, or toxins whatever their origin or method of production.”l T h s was a prohbition against the possession of such agents. THE BIOLOGICAL DEFENSE RESEARCH PROGRAM
The United States is a party to the Biologd Weapons Convention (BWC).T h s means, under international law, that the BWC is bindmg on the U.S., and that the U.S. must comply in good faith. This proposition is stated in the rulepuctu sunt servandu that a state party to a treaty is obliged to abide by its provision^.^ Since the entry into force of the Biological Weapons Convention in 1975, the Department of Defense (DoD) has maintained that its research in the field of biological and toxin agents is defen~ive.~ The actual range of research activity and the spectrum of agents maintained in readiness, however, are difficult to determine with precision. In 1969, the DoD sigmficantly reduced its level of research on biological weapons after an assessment by President kchard Nixon that they were not an appropriate weapon. However, the Central Intelligence Agency (CIA)maintained its interest in such weapon^,^,^ acknowledging in 1975 it had retained supplies of toxins for possible offensive use.5 In the 1980s, the DoD renewed its interest in biological warfare.*Reversing their acquiescence to the assessment of President Nixon, the DoD 131
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began to view biologcal weapons as sigdicant potential weapon^.^ The administration of Ronald Reagan, whch took office in 1981, increased DoD spending on biologcal weapons research threefold by 1984.5This renewed activity engendered concern that the DoD might be preparing stocks of biological or toxin agents for offensive use. In the late 1980s) under pressure from critics of its research, the DoD agreed to produce an assessment of its research program. This assessment first appeared, in preliminary form, as the Draft Programmatic Environmental Impact Statement (DEIS, May 1988) on the Biological Defense Research program (BDRP),written by the U.S. Army Medical Research and Development Command (USAMRDC).l0The DEIS (Sec. 1.1)characterized the BDRP as follows: “The Department of Defense cannot ignore completely the possibility that BW threats exist and fail to provide any deterrents to their potential application, much less fail to provide a reasonable level of protection to U.S. forces.” [Emphasis added.] The DoD’s use of the term deterrents drew criticism because it implied that techniques with an offensive capability were being developed to deter an enemy from a first use of biological or toxin weapons. Professor Francis A. Boyle, in a letter to USAMRDC, said that the quoted language “raises the question of whether or not the BDRP has for its purpose the development of offensive BW threats to serve as ‘deterrents’ to an alleged or supposed threat by an adversary of the United States. Moreover, the DEIS (Sec. 1.1) makes it quite clear that the development of such ‘deterrents’ is a DoD objective that is quite dlfferent from providing ‘a reasonable level of protection to U.S. forces’.” Professor Boyle said that since the DEIS distinguished “protection” from “deterrents,” obviously the DoD intends to mean that such ‘deterrents’ are somethlng beyond mere ‘protection’.’’lI The DoD apparently responded to this criticism. In the Final Programmatic Environmental Impact Statement (FEIS, April 1989), USAMRDC deleted the underlined language of Sec. 1.1, thereby eliminating any reference to a deterrent purpose.ll In its final version, the sentence above read: “The Department of Defense cannot ignore completely the possibility that BW threats exist, much less fail to provide a reasonable level of protection to U.S. forces.” Thus, USAMRDC removed the language that suggested that one aim of its program was to develop and maintain biological and toxin agents for deterrent use. The removal of the offending language did not, however, allay concern. The change in language raised doubts as to whether the goals of BDRP changed between the draft and final Statements, or whether the USAMRDC simply deleted language that had led to criticism. The BDRP was operating long before the DEIS. If deterrence was a purpose as of May 1988, did the deletion of the deterrence language mean that the purpose of the research had changed by April 1989? If so, the USAMRDC did not
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acknowledgeany change in policy. The suspicion remained that the change al assessment did not sigmfy either that in language from the draft to the h the DoD (a) had moved away from a deterrence policy or (b) had never pursued a deterrence policy. Thus, it seemed possible that the DoD had pursued a deterrence policy and was continuing to do so. T h s suspicion was heightened by the fact that, prior to the formulation of the Impact Statements, the DoD had advocated a broad reading of “prophylactic” and “protective” that seemed at odds with Article I of the BWC. The DoD said that the cloning, sequencing, and expression of viruses such as dengue and equine encephalomyelitis and lethal anthrax toxins were necessary in order to develop vaccines against such agents.I2The DoD also indicated plans to test aerosols of lethal biological agents, arguing that this was necessary to develop an understand- of the agents and potential delivery systems9 Suspicion was helghtened as well by the practicalities of the research. T h s research is dangerous because recombinant DNA or genetic engmeering technology facilitates the development of a large number of biological agents and toxins, and the exact nature of the weapons may be known only to a government that plans to use them against an adversary.13The possibility of developing many ddferent types of biological agents makes it ddficult for a military organization to develop vaccines against all possible agents that an adversary might use,5and gives rise to a suspicion that the purpose of the research may be to achieve an offensive capability. If prophylaxis is impossible, the only other possible purpose of developing agents must be offensive. The DoD stated that “the toxic domain of a toxin can be identlfied along with the domains responsible for the elicitation of protective antibodies.” But, it stated, “the toxic domain can be inactivated while retaining the antibody-specificregions.”I’ It could, of course, do the reverse, to make an offensive weapon. It said that it was not doing so.’’ The practicalities of researchlng prophylactics against biological weapons make it difficult to distinguish a prophylacticor defensive purpose from a deterrent or offensive purpose. In order to test prophylactics, researchers must produce the weapons material. Often no great amount of such material is required for offensive use. Thus, the stores maintained for researching prophylactics may have an offensive capability.’ The difference between possession for prophylactic purposes and for offensive purposes comes down to the intent of the posse~sor.~ Further cause for concern was generated by a December 1990 report on the BDRP by the General Accounting Office (GAO). At the request of Senator John Glenn, Chairman of the Senate Committee on Governmental Affairs, the GAO analyzed the BDRP. The GAO found that research projects accounting for as much as 40 percent of the BDRP budget do not
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address agents that are deemed a potential military threat. To determine whether a particular agent was a military threat, the GAO relied on assessments by the Armed Forces Medical Intehgence Center and by the Academy of Health Sciences (HealthServices Command, U.S. Army).The GAO said that for projects accounting for 20 percent of the budget, the agents under investlgation were definitely not a military threat, and for projects accounting for another 20 percent it was unable to determine whether the agents were a military threat because the information supplied by the Army was in~ufficient.’~ If the DoD research covers agents that pose no military threat, the suspicion arises that its interests in these agents may be for use as deterrents against an adversary. The GAO did not reach any conclusion on this point, going only so far as to state that much of the research was not addressed to agents that pose a threat. It did not speculate about the purposes of this research. Given the DoD’s stated interest in a deterrent capability, however, the possibility that some of this research is aimed at producing a deterrent capability cannot be discounted. [See Ref. 15 for an alternative point of view.] THE BIOLOGICAL WEAPONS CONVENTION From the legal standpoint, the Biological Defense Research Program operates in the shadow of the Biological Weapons Convention: it is to the BWC that one must look to determine whether the stockpiling of biologcal or toxin weapons for deterrence effect is permissible. The BWC’s most important idea was to outlaw not just the use of biological or toxin agents as weapons, but the possession of them for possible use. The theory behind the BWC was that a ban on use was insufficient; so long as states possessed these weapons, there was a risk that they would use them. A ban on possession would eliminate that possibility. The BWC did not, however, prohibit the development of biological or toxin agents for peaceful purposes. It did not prohibit their development to counteract illnesses appearing naturally, or to combat their possible use in warfare by an adversary. The caveat in Article I permitting development for peaceful purposes reads: “Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain: (1) Microbial or other biological agents, or toxins whatever their origm or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purpose~.”’~ This formulationwas not entirely free from ambiguity. It permitted the development and stockpilmg of agents needed to defend against use by an
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adversary. Beyond that, an argument could be made that it permitted the development and stockpiling of agents that could be used offensively as a means of deterring their use by an adversary. The theory of such a rationale is that, as with other weapons, an adversary that knows an opponent possesses them would fear having them used against it. One could argue that developing these weapons as a deterrent would be a “protective purpose,” and is thus lawful under Article I. The issue turns on the meaning of “protective.” Is “protective”limited only to that which protects from an attack in a direct sense, or can it include that which protects from an attack by deterring a potential adversary? The wording of Article I would seem to preclude the latter consmction.7 Article I uses the phrase “prophylactic, protective, or other peaceful purposes”. This means that development or stockphng for peaceful purposes, including prophylaxis or protection, is permitted. Thus “prophylactic” and “protective”are subcategoriesof “peaceful,”and a prophylactic or protective purpose must be a peaceful purpose. If a technology is developed as a deterrent weapon, the question would arise as to whether that is a peaceful purpose. One could argue that a deterrent purpose is a peaceful purpose. However, the agent would be developed for use as a weapon, which is not a peaceful purpose. The State could argue that developing a deterrent agent is a peaceful purpose because it has no intention of uslng the agent unless an adversary uses it first. Once again, the issue comes down to the intent of the State possessing the weapon. If the State actually is committed to refrain from using the weapon first, the State would argue that its purpose is peaceful. The problem is that one can never be sure of a State’s intention on such a matter; its intention at one point in time does not ensure its future intentions. Further, a state is represented by a government, made up of many officials that may not agree on the policy with respect to the weapons. Some may be committed never to use them unless an adversary does so fist; others may h n k they should be used first; still others may not be sure, their reactions depending on a battlefield situation as it develops. In short, even if the State expresses an intent against first use, one cannot rely on such an assurance. It was precisely h s possibility-that weapons held nught be usedthat informed the draftlng of BWC Article I. The point of Article I is that such weapons should not be available: military officials should not have them at their disposal so that they are not tempted to use them. This point distinguished the Biological Weapons Convention from the 1925 Geneva Protocol. Although Article I is not as clear as it nught be, the proper construction is that it does prohibit possession for deterrence. The preamble to the Biological Weapons Convention would seem to preclude deterrent use, or retention for a deterrent effect. It states that the
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parties are “determined, for the sake of all mankind, to exclude completely the possibility of bacteriological (biological)agents and toxins being used as weapons.” The purpose of the BWC is to ensure that such agents wdl not be maintained for potential use against an adversary; thus maintenance as a deterrent is prohibited.
The Meaning of “Pmphylactic” and “Pmtective” Purposes “Prophylactic” and “protective” purposes are limited to a defensive purpose, and a defensive purpose excludes possible use in retaliation or to deter an adversary from first use. Thus development of biological agents as a deterrent is impermissible. Explaining Article I to a Congressional committee, Rear Admiral Thomas D. Davies, Assistant Director of the U.S. A r m s Control and Disarmament Agency, said that “prophylactic”refers to “activities related to the protection of the human body from the effects of organisms or substances to which an individual rmght be directly exposed. It encompasses medical activities such as diagnosis, therapy and immunization, and related research.” Admiral Davies said that “protective” applies to “the development of such equipment as decontamination systems, protective masks and clothmg, air and water filtration systems, and detection and warning devices.” He said that “there may be other ’peaceful’uses of biological agents, such as in civilian agricultural or industrial processes, or basic scientific research. However, it was made clear in the negotiating record of the convention that it would not permit the development, acquisition or retention of any quantities of agents or toxins for any hostile purposes, including ‘defensive’ warfare, retaliation or deterrence; nor would it permit the stockpiling or retention for non-peaceful purposes of quantities that, when produced or acquired, had a justification for a peaceful purpose.”16 The term protective was inserted in the Biological Weapons Convention as a result of suggestions by the Netherlands and Italy. Both the United States and the Soviet Union stated that this term “in no sense provided a basis for circumventing the convention” and that “it made clear that the development of devices or methods for protectlng individuals or populations against biological agents was not pr~hibited.”’~ That the term protective purpose means only defensive purpose is made even more clear by an analysis of the “protective purpose” formulation in the other languages in which the text of the BWC was written. The BWC was concluded in five languages-English, Russian, French, Spanish and Chinese-and, according to Article XV of the BWC, all five texts are equally authentic. This is a standard practice for multilateral treaties where widespread adherence is contemplated. The United Nations Charter, for ex-
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ample, was concluded in the same five languages. The conclusion of treaties in more than one language, however, can lead to problems. The text in one language may not say quite the same dung as the text in another language; a conflict may arise between two of the texts. International law has developed rules to deal with such a situation. According to the Vienna Convention on the Law of Treaties, when texts in multiple languages are equally authentic, “the terms of the treaty are presumed to have the same meaning in each authentic text.”4Thus, the presumption is that there is no difference, and that no text has priority over another. This means that every effort must be made to read the texts in a way that makes sense in all the official languages. The problem is easily resolvable when the text in one or more of the languages uses a more specific term. This is the case with Article I of the BWC: in the French, Spanish, and Chinese texts the formulation is “purposes of protection,” quite close to the English. These four texts are indistinguishable. The Russian text, however, uses the term “defensive” (zashchitnyi) instead of “protection.” “Defensive” more clearly than “protection” limits the purpose to counteracting an agent being used by an adversary; a defensive purpose would not cover agents developed for possible offensive use, even as a deterrent. When treaty texts vary, they must be reconciled. This means that “protective” or “protection” in the English, Spanish, French, and Chinese texts must be read as bemg consistent with “defensive” in the Russian text. The mean of “defensive” is clearer and more limited. “Defense” in international law excludes reprisal, according to the United Nations Charter’s provision on self-defense; Article 51 of the Charter permits military action in self-defense. Defense involves only a response to an attack that has commenced or perhaps is about to commence. It does not include measures undertaken to deter possible future hostile action. Prior to the adoption of the U.N. Charter, international law had authorized the use of d i t a r y force in reprisal for the use of force by an adversary. In limiting the use of force to defense situations, the Charter, through Article 5 1, outlawed reprisals.
The Pmhibition against Delivery Systems One techmque of construing a treaty is to read ambiguous terms in Ight of the context in which they appear. Terms are not to be read in isolation, but with regard to their function. They are also to be read in lght of the overall purpose of the treaty in which they appear. The Vienna Convention on the Law of Treaties states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given the terms of the treaty
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in their context and in the lght of its object and p u r p ~ s e . In ” ~t h s connection, the second subdivision of Article I is highly relevant. The second subdivision indicates that the prohibition extends to anything that might involve agents developed as a deterrent, or to technology that could be delivered against an enemy. Article I(2) prohibits the development or stockpiling of “weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.” Thus, a State Party to the BWC may not have delivery systems capable of inflicting prohibited agents on an adversary. This would seem to preclude potential offensive use of such agents. If maintaining a delivery system is prohibited, then maintaining the agents under circumstances in which their delivery to an adversary is possible is prohibited. Even if the State Party has no intention of first use and is maintaining the agents to deter an adversary from first use, h s is not permitted by Article I. Thus the development of a prohibited agent for use in combat, even if the aim is deterrence, is unlawful. In construing a treaty, it is accepted procedure to consider related provisions of the same treaty. Therefore it is appropriate to consider the prohibition against delivery systems to construe the scope of the prohibition on biological agents and toxins. Moreover, the BWC’s “object and purpose” calls for a narrow reading of the “peaceful purposes” exception: the object and purpose is to eliminate the possession of the prohbited agents. If the exception is read broadly, it would swallow the prohibition.
“Never In Any Circumstances” The conclusion that Article I does not permit the development of deterrent biological weaponry is reinforced by the fact that Article I uses the phrase “never in any circumstances.” The prohibition applies across the board; no excuse or explanatory rationale can suffice to permit the State to do that which Article I prohibits. This phrasing is extraordinary. Rarely is a prohibition stated so categorically in a treaty. It emphasizes the absolute obligation to observe the BWC’s prohibitions, and to refrain from producing or maintaining the prohibited agents. The conclusion that development for deterrent purposes is prohibited underscores the understanding of the BWC’s drafters; the BWC aims to prohibit not only use, but also development of these agents, the rationale being that the world would be a safer place if such weapons simply did not exist. Thus, maintaining prohibited agents for deterrent effect is prohbited by the BWC. When the text of the BWC was adopted, the U.S. representative said that the term “protective purposes” must be read narrowly: “the expression ‘protective’is not meant so broadly as to permit in one way or
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another the possession of biologcal agents or toxins for purposes of armament, under the pretext that such arms would be a means of defense, or reprisal, or of dissuasion.”’*The Vienna Convention states that, in construing a treaty, “recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting in the application of article 31 [the basic provision on treaty construction), or to determine the meaning when the interpretation according to article 31 leaves the meamng ambiguous or ob~cure.”~ Thus, statements like the one quoted are important in determining the meaning of a treaty provision. Applymg the usual techniques of treaty interpretation, one is led to conclude that Article I strictly prohibited the stockpiling of biological or toxin agents with an offensive capability. The very purpose of the BWC was to ensure that such agents are not maintained in a state in which they could be delivered against an adversary. This provision distinguished the BWC from the 1925 Geneva Protocol.
SECRECY VERSUS MULTILATERAL, RESEARCH
If the United States is genuinely committed to developing only techniques or agents that provide a defense against biological weapons, it should be advantageous to undertake this R&D on a multilateral basis. If scientists from many states collaborate to develop the best possible defenses, it reduces the chance that a group of scientists in the U.S. or elsewhere wdl be able to develop an offensive capability in BW. The lkelihood of public exposure would be too high. Further, a collaborative approach would ensure that the techmques developed will be shared among participating states, allowing the states to ensure the w e s t level of protection for their military and civilian populations. USAMRDC has involved scientists from other nations in its work,Il a useful first step that demonstrates the feasibility of a truly collaborative approach. Yet the FEIS (Sec. 4.2.2) rejects the possibility of transferring responsibility from the military to a civilian agency within the U.S. government. “The BDRP,” it states, “is a vital component of the national defense posture. While certain scientfic, programmatic, or research management responsibilities could possibly be transferred from the military, this is not the case for defense responsibilities. The DoD is responsible for recommending to the Congress adequate measures to defend the U.S. and its allies successfully. It would not be appropriate, even if it could be done institutionally, to transfer defense responsibility to another agency or organization.”” If the goal is truly defensive, there should be no concern about sharing
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either the responsibility or the research with other nations. One purported goal of the BDRP is to discourage a potential adversary from contemplating the use of biological weapons by letting it know that we have adequate countermeasures.ll This goal would be better achieved if the defensive research were coordinated internationally, and Australia did propose that research be conducted under international control.1* Article X of the BWC requires States Parties to facilitate the exchange of equipment, materials, and information regarding bacteriological agents and toxins for peaceful purposes, although it did not establish a mechanism for coordinating research. A defensive purpose is one of the peaceful purposes enumerated in Article I, so each State Party has an obligation to exchange its information on that subject. This construction of Article X was contested by Georges Fischer, who concluded that ‘Ithe [Article 101 obligation to facilitate exchanges and to cooperate does not carry over to equipment, materials, and scientific and technical information having to do with the use of agents or toxins for protective purposes.”18However, Article I includes prophylactic and protective purposes as subcategories of the broader peaceful purposes. Article X, moreover, gives each State Party a right to participate in the work undertaken for peaceful purposes by other States Parties. Thus, any other State Party to the BWC has a nght to participate in our efforts. Several mechanisms have been proposed to institutionalize the Article X obligation to collaborate and share in research, using the World Health Organization as one possible channel.2oPresident Richard Nixon advocated the multilateralization of research before the U.N. Committee on Disarmament. “Because of the rapid transmission of contagious diseases,” he said, “particularly with modem means of communications, any use of biological weapons-by any State in any conflict in the world-would endanger the people of every country. Additional restraints on biological weapons would thus contribute to the security of all peoples. A prohibition against the possession of biological weapons could also have far-reachmg benefits of another character. It could encourage international cooperation in the peaceful application of biological research, a field which may lead to immeasurable advances in the health and well-being of peoples everywhere.”21 The U.N.General Assembly called for international measures to police the BWC, resolving that “verificationshould be based on a combination of appropriate national and international measures, which would complement and supplement each other, thereby providing an acceptable system that would ensure the effective implementation of the prohibition.”22A system of five-year reviews by States Parties is used to monitor compliance with the BWC. The Second Review Conference approved a recommenda-
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tion to share information more b r ~ a d l yThis . ~ important initiative needs to be pursued more vigorously. At the same time, the States Parties to the BWC need to establish a verification system that provides both safeguards against the development of agents for offensive use and assurance to States that shared information and research will not be used to produce an agent for offensive use. The Federation of American Scientists in 1991 proposed a framework for a protocol to the BWC that would elaborate mechanisms of verification, which would include international inspection of R&D facilities.* SECRECY AND VERACITY
The Department of Defense’s lack of disclosure of detail in the BDRP is premised on a need for secrecy. As a result, the public has no fullaccount of these The DoD’s concern for secrecy, however, must be considered in lght of its record of veracity in public disclosure. To the DoD, providing information to the public is less an exercise in public enlightenment than an effort to achieve its mission more effectively. The DoD’s policy of discloslng information favorable to its mission and concealing information that places it in a negative light is in the nature of a military orgarmation. For example, the DoD has a poor record in explaining the reasons for military action, perhaps the most important public issue for a military organization. Since World War 11, the DoD has consistently failed to explain to the public the actual reason when it has sent troops into combat. The DoD’s practice has been quite consistent, irrespective of whch political party was in office. The DoD has argued that prevarication is ethically permissible: in 1962 Assistant Secretary of Defense Arthur Sylvester said that the Department must at times lie in situations of urgency, to serve national security int e r e s t ~He . ~ ~said he believed in “the h e r e n t right of the Government to lie,” and spoke of prevarication euphemistically as “generation” of news, saymg that ‘hews management” was “part of the arsenal of weaponry” of the D O D .Information ~~ dissemination as a weapon was the policy. When biological weapon research assumed prominence in the mid-l980s, h s policy had not changed. In the summer of 1986 the White House released stories that Libya was increasing terrorist activity and that the U.S. might repeat its air attack on Libya, or that Libya’s leader, Colonel Moammar Qaddd, might be overthrown. The Administration knew that Libya was not increasing terrorist activity, and it had no information that Colonel Qaddd was about to be overthrown. A memorandum from National Security Advisor John Poindexter to President Ronald Reagan stated this was a
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“disinformation program” (Poindexter’s term) to make Colonel Qaddafi think that internal opposition to him was growing, that key aides were disloyal, and that the United States would attack him. This would make Colonel Qaddafi “paranoid and ineffective” and “embolden” Libyans to overthrow him.25Again, information was used as a weapon. The Reagan Administration also prevaricated about Soviet military spending: to justdy rapidly increasing the U.S. defense budget, the Administration claimed that the Soviet military budget had grown at 12 to 15% per annum. In 1986 the CIA produced an analysis showing that Soviet military spending grew at only 2% per annum from 1975 to 1984.5 Nonconventional weapons have been a matter of particular concern to the DoD in recent years. The DoD’s assessment of the potential use of chemical weapons by Iraq was a factor in its planning for its troop deployment against Iraq in 1990-91. A few years earlier, when the DoD was attempting to justdy the BDW, the DoD tried to bolster its position by arguing that the U.S.S.R.was supporting an illegal offensive biological warfare R&D program. To “prove” its contention, the DoD alleged that an epidemic of anthrax that occurred in 1979 in Sverdlovsk, U.S.S.R., and reports of “yellow rain” by the Hmong people in Laos represented illicit BW-related activity.” The etiology of the anthrax, it claimed, was a secret biologcal warfare facility located on the outskirts of Sverdlovsk. The “yellow rain,” it said, was a toxic weapon manufactured in the U.S.S.R. These allegations, however, were not backed by conclusive evidence, and many scientists and arms-control experts disbelieved them.5J5J8J9However, the Reagan Administration held to its position that the Soviets had violated the BWC, and that this violation showed the U.S.S.R.’s propensity to break arms-control agreements. The DoD’s record on secrecy and veracity is not one that leads to great confidence: too often it has concealed information from the public or used questionable or palpably false information as a pretext for military action. It has been left to Congressional committees and the media to pry loose dormation that involved no legitimate military secrecy but that the DoD did not want revealed to the public. In the context of biological and toxin research, there must be fuller disclosure to establish public confidence. CONCLUSION
Much of the publicly stated rationale for biological weapons research has revolved around a supposed need to combat Soviet research in this field.9 With the Cold War at an apparent end, this rationale rings hollow. If the DoD has been producing agents prohibited by the Biologcal Weapons
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Convention, and retaining them in quantities suitable for use against an adversary, it rmght well determine that national security interests mandate the concealment of the fact. So long as the DoD discloses so little about the purpose and scope of specific research projects, the public cannot be confident that the U.S.is complying with the BWC. The U.S. government’s lack of candor, both with respect to its charges about alleged Soviet violations and with respect to its own program, points to a need for a mechanism to ensure that research is being conducted only within the bounds permitted by the Biological Weapons Convention. The most effective mechanism would be a more s i g dkant sharing of information on an ongoing basis among the States Parties to the BWC. Further development along this line is imperative.
REFERENCES 1. Convention on the Prohbition of the Development, Production and Stockpiling of Bacteriological (Biological)and Toxin Weapons and on Their Destruction (1972). U.S. Treaties and Other International Agreements 26583. 2. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of BacteriologicalMethods of Warfare (1925).U.S. Treaties and Other International Agreements 2657 1. 3. THOMAS,A. V. W. &A. J. THOMAS, JR. 1970. Legal Limits on the Use of Chemical and Biological Weapons. Southern Methodist University Press. Dallas, Texas. 4. Vienna Convention on the Law of Treaties. 1969. U.N. Doc. NCONF. 39/27. 5. PILLER, C. & K.R. YAMAMOTO1988. Gene Wars: Military Control over the New Genetic Technologies. Wdiam Morrow. New York. 6. U.S. SENATE. 1975. Committee to Study Governmental Operations with Respect to Intelligence Activities. U n a u t h o r d Storage of Toxic Agents. Hearings, 94th Cong., 1st Sess. U.S. Government Printlng Office. Washmgton, DC . 7. FALK,R. A. 1986. Inhibiting reliance on biological weaponry: The role and relevance of international law. Am. Univ. J. Int. Law & Policy 1:17-34. 8. WRIGHT, S. & R. L.SINSHEIMER 1983. Recombinant DNA and biological warfare. Bull. Atomic Sci. 39:20-22. 9. WRIGHT, S. 1987. New Designs for Biological Weapons. Bull. Atomic Sci.
43:43-45. 10. DEPARTMENT OF DEFENSE (DEPARTMENT OF THE ARMY). 1988. Draft Programmatic
Environmental Impact Statement on the Department of Defense Biological Defense Research Program (May 1988). 11. DEPARTMENT OF DEFENSE (DEPARTMENT OF THE ARMY). 1989. Final Programmatic Environmental Impact Statement: Biological Defense Research Program (April 1989).
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12. ANON.1987. Flghtmg biological weapons research in the courts. Bull. Atomic Sci. 43:44. 13. STRAWS, H. i 3 J. KING. 1986. The fallacy of defensive biological weapon programmes. In Biological and Toxin Weapons Today. Erhard Geissler, Ed. Oxford University Press. Oxford. 14. US. GENERAL ACCOUNTING OFFICE. 1990. Report to the Chairman, Committee on Governmental Affairs, U.S. Senate: Biological Warfare: Better Controls in DOD’s Research Could Prevent Unneeded Expenditures, GAO/NSIAD-9168. 15. DALRYMPLE, J. 1992. DoD-Sponsored Virus Vaccine Development: An Investlgator’s Perspective. Ann. N.Y. Acad. Sci. This volume. OF REPRESENTATIVES. 1980. Committee on Foreign Affairs. Strategic 16. U.S. HOUSE Implications of Chemical and Biological Warfare. Hearings before the Subcommittees on International Security and ScientificAffairs and on Asian and Pacific Affairs, 96th Cong, 2d Sess., Apr. 24. US Government Printing Office. Washmgton, DC. 17. U.N. CONFERENCE OF THE COMMITTEE ON DISARMAMENT. 1971. General and Complete Disarmament, Question of Chemical and Bacteriological (Biological) Weapons, Urgent Need for Suspension of Nuclear and ThermonuclearTests. Oct. 6, 1971. U.N. Doc. N8457, DC/234. 18. FISCHER, G. 1971. Chronique du dtsarmement: La Convention sur l’interdiction de la mise au point, de la fabrication et du stockage des armes bacttriologiques (biologiques)ou a toxines et sur leur destruction. Annu. Fr. Droit Int. 17:85-130. 19. FISCHER, G. 1980. La Conference d’Examen de la Convention interdisant les Armes Bact6riologiques ou A toxins. Annu. Fr. Droit Int. 26:89-99. 20. SIMS,N. A. 1988. The Diplomacy of Biological Disarmament: Vicissitudes of a Treaty in Force, 1975-85. St. Martin’s Press. New York. 21. U.N. CONFERENCEOFTHE COMMITTEEON DISARMAMENT 1971. General and Complete Disarmament, Question of Chemical and Bacteriological (Biological) Weapons, Urgent Need for Suspensionof Nuclear and Thermonuclear Tests. Oct. 6, 1971. U.N. Doc. N8457, DC/234 (1971),Annex C, Message from Mr. Richard M. Nixon, President of the United States of America, CCD/3 19, Feb. 23, 1971. 22. U.N. GENERAL ASSEMBLY. 1972. G.A. Res. 2827, Question of Chemical and Bacteriological (Biological)Weapons, Jan. 19, 1972, U.N. Doc. M Y 2 8 2 7
I=w.
23. ANON.1991. Implementation of the Proposals for a Verification Protocol to the Biological Weapons Convention. Federation of American Scientists. Washw o n , DC. 24. DEARIN, J, 1968 Lyndon Johnson’sCredibility Gap. Public Affairs Press. Washw o n , DC. 25. ANON.1962. US.-‘generated’ news defended by Sylvester. Washmgton Post, Dec. 7: A2. 26. WOODWARD, R. 1986. Gadhafi target of secret U.S. deception plan; Elaborate campaign included dismformation that appeared as fact in American media. Washington Post, Oct. 2: Al.
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QUESTION AND ANSWER QUESTION: The Army has over the years given the public a good accounting of its work in the biological area. Are you implying that it is hdmg somethmg? JOHN QUICLEY: The rmlitary has imperatives inconsistent with civilian norms. The notion of freedom of speech, for one thmg, is quite different in the military. Someone in the military who has information that would be potentially useful to an adversary obviously can’t speak freely. So some dlfferences arise out of the very situation. That point is related to the public information that a military organization puts out. You can‘t expect a military organization to be concerned about the edification of the public when it is malung statements. It is talung actions and it needs to justdy those actions in terms of generally accepted norms. If it is bending the norms, it’s likely to bend the exposition to conform with the norms. That’s true of military organizations everywhere in the world, not only in the United States. As long as there is a public perception that offensive weapons could be under preparation, to the extent that you let the world think that that is a possibility, other states don’t know that we’re complymg. If we are complying, it should be publicized so that the compliance is clear to everybody.
The United States is a party to the Biologd Weapons Convention (BWC).T h s means, under international law, that the BWC is bindmg on the U.S., and that the U.S. must comply in good faith. This proposition is stated in the rulepuctu sunt servandu that a state party to a treaty is obliged to abide by its provision^.^ Since the entry into force of the Biological Weapons Convention in 1975, the Department of Defense (DoD) has maintained that its research in the field of biological and toxin agents is defen~ive.~ The actual range of research activity and the spectrum of agents maintained in readiness, however, are difficult to determine with precision. In 1969, the DoD sigmficantly reduced its level of research on biological weapons after an assessment by President kchard Nixon that they were not an appropriate weapon. However, the Central Intelligence Agency (CIA)maintained its interest in such weapon^,^,^ acknowledging in 1975 it had retained supplies of toxins for possible offensive use.5 In the 1980s, the DoD renewed its interest in biological warfare.*Reversing their acquiescence to the assessment of President Nixon, the DoD 131
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began to view biologcal weapons as sigdicant potential weapon^.^ The administration of Ronald Reagan, whch took office in 1981, increased DoD spending on biologcal weapons research threefold by 1984.5This renewed activity engendered concern that the DoD might be preparing stocks of biological or toxin agents for offensive use. In the late 1980s) under pressure from critics of its research, the DoD agreed to produce an assessment of its research program. This assessment first appeared, in preliminary form, as the Draft Programmatic Environmental Impact Statement (DEIS, May 1988) on the Biological Defense Research program (BDRP),written by the U.S. Army Medical Research and Development Command (USAMRDC).l0The DEIS (Sec. 1.1)characterized the BDRP as follows: “The Department of Defense cannot ignore completely the possibility that BW threats exist and fail to provide any deterrents to their potential application, much less fail to provide a reasonable level of protection to U.S. forces.” [Emphasis added.] The DoD’s use of the term deterrents drew criticism because it implied that techniques with an offensive capability were being developed to deter an enemy from a first use of biological or toxin weapons. Professor Francis A. Boyle, in a letter to USAMRDC, said that the quoted language “raises the question of whether or not the BDRP has for its purpose the development of offensive BW threats to serve as ‘deterrents’ to an alleged or supposed threat by an adversary of the United States. Moreover, the DEIS (Sec. 1.1) makes it quite clear that the development of such ‘deterrents’ is a DoD objective that is quite dlfferent from providing ‘a reasonable level of protection to U.S. forces’.” Professor Boyle said that since the DEIS distinguished “protection” from “deterrents,” obviously the DoD intends to mean that such ‘deterrents’ are somethlng beyond mere ‘protection’.’’lI The DoD apparently responded to this criticism. In the Final Programmatic Environmental Impact Statement (FEIS, April 1989), USAMRDC deleted the underlined language of Sec. 1.1, thereby eliminating any reference to a deterrent purpose.ll In its final version, the sentence above read: “The Department of Defense cannot ignore completely the possibility that BW threats exist, much less fail to provide a reasonable level of protection to U.S. forces.” Thus, USAMRDC removed the language that suggested that one aim of its program was to develop and maintain biological and toxin agents for deterrent use. The removal of the offending language did not, however, allay concern. The change in language raised doubts as to whether the goals of BDRP changed between the draft and final Statements, or whether the USAMRDC simply deleted language that had led to criticism. The BDRP was operating long before the DEIS. If deterrence was a purpose as of May 1988, did the deletion of the deterrence language mean that the purpose of the research had changed by April 1989? If so, the USAMRDC did not
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acknowledgeany change in policy. The suspicion remained that the change al assessment did not sigmfy either that in language from the draft to the h the DoD (a) had moved away from a deterrence policy or (b) had never pursued a deterrence policy. Thus, it seemed possible that the DoD had pursued a deterrence policy and was continuing to do so. T h s suspicion was heightened by the fact that, prior to the formulation of the Impact Statements, the DoD had advocated a broad reading of “prophylactic” and “protective” that seemed at odds with Article I of the BWC. The DoD said that the cloning, sequencing, and expression of viruses such as dengue and equine encephalomyelitis and lethal anthrax toxins were necessary in order to develop vaccines against such agents.I2The DoD also indicated plans to test aerosols of lethal biological agents, arguing that this was necessary to develop an understand- of the agents and potential delivery systems9 Suspicion was helghtened as well by the practicalities of the research. T h s research is dangerous because recombinant DNA or genetic engmeering technology facilitates the development of a large number of biological agents and toxins, and the exact nature of the weapons may be known only to a government that plans to use them against an adversary.13The possibility of developing many ddferent types of biological agents makes it ddficult for a military organization to develop vaccines against all possible agents that an adversary might use,5and gives rise to a suspicion that the purpose of the research may be to achieve an offensive capability. If prophylaxis is impossible, the only other possible purpose of developing agents must be offensive. The DoD stated that “the toxic domain of a toxin can be identlfied along with the domains responsible for the elicitation of protective antibodies.” But, it stated, “the toxic domain can be inactivated while retaining the antibody-specificregions.”I’ It could, of course, do the reverse, to make an offensive weapon. It said that it was not doing so.’’ The practicalities of researchlng prophylactics against biological weapons make it difficult to distinguish a prophylacticor defensive purpose from a deterrent or offensive purpose. In order to test prophylactics, researchers must produce the weapons material. Often no great amount of such material is required for offensive use. Thus, the stores maintained for researching prophylactics may have an offensive capability.’ The difference between possession for prophylactic purposes and for offensive purposes comes down to the intent of the posse~sor.~ Further cause for concern was generated by a December 1990 report on the BDRP by the General Accounting Office (GAO). At the request of Senator John Glenn, Chairman of the Senate Committee on Governmental Affairs, the GAO analyzed the BDRP. The GAO found that research projects accounting for as much as 40 percent of the BDRP budget do not
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address agents that are deemed a potential military threat. To determine whether a particular agent was a military threat, the GAO relied on assessments by the Armed Forces Medical Intehgence Center and by the Academy of Health Sciences (HealthServices Command, U.S. Army).The GAO said that for projects accounting for 20 percent of the budget, the agents under investlgation were definitely not a military threat, and for projects accounting for another 20 percent it was unable to determine whether the agents were a military threat because the information supplied by the Army was in~ufficient.’~ If the DoD research covers agents that pose no military threat, the suspicion arises that its interests in these agents may be for use as deterrents against an adversary. The GAO did not reach any conclusion on this point, going only so far as to state that much of the research was not addressed to agents that pose a threat. It did not speculate about the purposes of this research. Given the DoD’s stated interest in a deterrent capability, however, the possibility that some of this research is aimed at producing a deterrent capability cannot be discounted. [See Ref. 15 for an alternative point of view.] THE BIOLOGICAL WEAPONS CONVENTION From the legal standpoint, the Biological Defense Research Program operates in the shadow of the Biological Weapons Convention: it is to the BWC that one must look to determine whether the stockpiling of biologcal or toxin weapons for deterrence effect is permissible. The BWC’s most important idea was to outlaw not just the use of biological or toxin agents as weapons, but the possession of them for possible use. The theory behind the BWC was that a ban on use was insufficient; so long as states possessed these weapons, there was a risk that they would use them. A ban on possession would eliminate that possibility. The BWC did not, however, prohibit the development of biological or toxin agents for peaceful purposes. It did not prohibit their development to counteract illnesses appearing naturally, or to combat their possible use in warfare by an adversary. The caveat in Article I permitting development for peaceful purposes reads: “Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain: (1) Microbial or other biological agents, or toxins whatever their origm or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purpose~.”’~ This formulationwas not entirely free from ambiguity. It permitted the development and stockpilmg of agents needed to defend against use by an
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adversary. Beyond that, an argument could be made that it permitted the development and stockpiling of agents that could be used offensively as a means of deterring their use by an adversary. The theory of such a rationale is that, as with other weapons, an adversary that knows an opponent possesses them would fear having them used against it. One could argue that developing these weapons as a deterrent would be a “protective purpose,” and is thus lawful under Article I. The issue turns on the meaning of “protective.” Is “protective”limited only to that which protects from an attack in a direct sense, or can it include that which protects from an attack by deterring a potential adversary? The wording of Article I would seem to preclude the latter consmction.7 Article I uses the phrase “prophylactic, protective, or other peaceful purposes”. This means that development or stockphng for peaceful purposes, including prophylaxis or protection, is permitted. Thus “prophylactic” and “protective”are subcategoriesof “peaceful,”and a prophylactic or protective purpose must be a peaceful purpose. If a technology is developed as a deterrent weapon, the question would arise as to whether that is a peaceful purpose. One could argue that a deterrent purpose is a peaceful purpose. However, the agent would be developed for use as a weapon, which is not a peaceful purpose. The State could argue that developing a deterrent agent is a peaceful purpose because it has no intention of uslng the agent unless an adversary uses it first. Once again, the issue comes down to the intent of the State possessing the weapon. If the State actually is committed to refrain from using the weapon first, the State would argue that its purpose is peaceful. The problem is that one can never be sure of a State’s intention on such a matter; its intention at one point in time does not ensure its future intentions. Further, a state is represented by a government, made up of many officials that may not agree on the policy with respect to the weapons. Some may be committed never to use them unless an adversary does so fist; others may h n k they should be used first; still others may not be sure, their reactions depending on a battlefield situation as it develops. In short, even if the State expresses an intent against first use, one cannot rely on such an assurance. It was precisely h s possibility-that weapons held nught be usedthat informed the draftlng of BWC Article I. The point of Article I is that such weapons should not be available: military officials should not have them at their disposal so that they are not tempted to use them. This point distinguished the Biological Weapons Convention from the 1925 Geneva Protocol. Although Article I is not as clear as it nught be, the proper construction is that it does prohibit possession for deterrence. The preamble to the Biological Weapons Convention would seem to preclude deterrent use, or retention for a deterrent effect. It states that the
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parties are “determined, for the sake of all mankind, to exclude completely the possibility of bacteriological (biological)agents and toxins being used as weapons.” The purpose of the BWC is to ensure that such agents wdl not be maintained for potential use against an adversary; thus maintenance as a deterrent is prohibited.
The Meaning of “Pmphylactic” and “Pmtective” Purposes “Prophylactic” and “protective” purposes are limited to a defensive purpose, and a defensive purpose excludes possible use in retaliation or to deter an adversary from first use. Thus development of biological agents as a deterrent is impermissible. Explaining Article I to a Congressional committee, Rear Admiral Thomas D. Davies, Assistant Director of the U.S. A r m s Control and Disarmament Agency, said that “prophylactic”refers to “activities related to the protection of the human body from the effects of organisms or substances to which an individual rmght be directly exposed. It encompasses medical activities such as diagnosis, therapy and immunization, and related research.” Admiral Davies said that “protective” applies to “the development of such equipment as decontamination systems, protective masks and clothmg, air and water filtration systems, and detection and warning devices.” He said that “there may be other ’peaceful’uses of biological agents, such as in civilian agricultural or industrial processes, or basic scientific research. However, it was made clear in the negotiating record of the convention that it would not permit the development, acquisition or retention of any quantities of agents or toxins for any hostile purposes, including ‘defensive’ warfare, retaliation or deterrence; nor would it permit the stockpiling or retention for non-peaceful purposes of quantities that, when produced or acquired, had a justification for a peaceful purpose.”16 The term protective was inserted in the Biological Weapons Convention as a result of suggestions by the Netherlands and Italy. Both the United States and the Soviet Union stated that this term “in no sense provided a basis for circumventing the convention” and that “it made clear that the development of devices or methods for protectlng individuals or populations against biological agents was not pr~hibited.”’~ That the term protective purpose means only defensive purpose is made even more clear by an analysis of the “protective purpose” formulation in the other languages in which the text of the BWC was written. The BWC was concluded in five languages-English, Russian, French, Spanish and Chinese-and, according to Article XV of the BWC, all five texts are equally authentic. This is a standard practice for multilateral treaties where widespread adherence is contemplated. The United Nations Charter, for ex-
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ample, was concluded in the same five languages. The conclusion of treaties in more than one language, however, can lead to problems. The text in one language may not say quite the same dung as the text in another language; a conflict may arise between two of the texts. International law has developed rules to deal with such a situation. According to the Vienna Convention on the Law of Treaties, when texts in multiple languages are equally authentic, “the terms of the treaty are presumed to have the same meaning in each authentic text.”4Thus, the presumption is that there is no difference, and that no text has priority over another. This means that every effort must be made to read the texts in a way that makes sense in all the official languages. The problem is easily resolvable when the text in one or more of the languages uses a more specific term. This is the case with Article I of the BWC: in the French, Spanish, and Chinese texts the formulation is “purposes of protection,” quite close to the English. These four texts are indistinguishable. The Russian text, however, uses the term “defensive” (zashchitnyi) instead of “protection.” “Defensive” more clearly than “protection” limits the purpose to counteracting an agent being used by an adversary; a defensive purpose would not cover agents developed for possible offensive use, even as a deterrent. When treaty texts vary, they must be reconciled. This means that “protective” or “protection” in the English, Spanish, French, and Chinese texts must be read as bemg consistent with “defensive” in the Russian text. The mean of “defensive” is clearer and more limited. “Defense” in international law excludes reprisal, according to the United Nations Charter’s provision on self-defense; Article 51 of the Charter permits military action in self-defense. Defense involves only a response to an attack that has commenced or perhaps is about to commence. It does not include measures undertaken to deter possible future hostile action. Prior to the adoption of the U.N. Charter, international law had authorized the use of d i t a r y force in reprisal for the use of force by an adversary. In limiting the use of force to defense situations, the Charter, through Article 5 1, outlawed reprisals.
The Pmhibition against Delivery Systems One techmque of construing a treaty is to read ambiguous terms in Ight of the context in which they appear. Terms are not to be read in isolation, but with regard to their function. They are also to be read in lght of the overall purpose of the treaty in which they appear. The Vienna Convention on the Law of Treaties states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given the terms of the treaty
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in their context and in the lght of its object and p u r p ~ s e . In ” ~t h s connection, the second subdivision of Article I is highly relevant. The second subdivision indicates that the prohibition extends to anything that might involve agents developed as a deterrent, or to technology that could be delivered against an enemy. Article I(2) prohibits the development or stockpiling of “weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.” Thus, a State Party to the BWC may not have delivery systems capable of inflicting prohibited agents on an adversary. This would seem to preclude potential offensive use of such agents. If maintaining a delivery system is prohibited, then maintaining the agents under circumstances in which their delivery to an adversary is possible is prohibited. Even if the State Party has no intention of first use and is maintaining the agents to deter an adversary from first use, h s is not permitted by Article I. Thus the development of a prohibited agent for use in combat, even if the aim is deterrence, is unlawful. In construing a treaty, it is accepted procedure to consider related provisions of the same treaty. Therefore it is appropriate to consider the prohibition against delivery systems to construe the scope of the prohibition on biological agents and toxins. Moreover, the BWC’s “object and purpose” calls for a narrow reading of the “peaceful purposes” exception: the object and purpose is to eliminate the possession of the prohbited agents. If the exception is read broadly, it would swallow the prohibition.
“Never In Any Circumstances” The conclusion that Article I does not permit the development of deterrent biological weaponry is reinforced by the fact that Article I uses the phrase “never in any circumstances.” The prohibition applies across the board; no excuse or explanatory rationale can suffice to permit the State to do that which Article I prohibits. This phrasing is extraordinary. Rarely is a prohibition stated so categorically in a treaty. It emphasizes the absolute obligation to observe the BWC’s prohibitions, and to refrain from producing or maintaining the prohibited agents. The conclusion that development for deterrent purposes is prohibited underscores the understanding of the BWC’s drafters; the BWC aims to prohibit not only use, but also development of these agents, the rationale being that the world would be a safer place if such weapons simply did not exist. Thus, maintaining prohibited agents for deterrent effect is prohbited by the BWC. When the text of the BWC was adopted, the U.S. representative said that the term “protective purposes” must be read narrowly: “the expression ‘protective’is not meant so broadly as to permit in one way or
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another the possession of biologcal agents or toxins for purposes of armament, under the pretext that such arms would be a means of defense, or reprisal, or of dissuasion.”’*The Vienna Convention states that, in construing a treaty, “recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting in the application of article 31 [the basic provision on treaty construction), or to determine the meaning when the interpretation according to article 31 leaves the meamng ambiguous or ob~cure.”~ Thus, statements like the one quoted are important in determining the meaning of a treaty provision. Applymg the usual techniques of treaty interpretation, one is led to conclude that Article I strictly prohibited the stockpiling of biological or toxin agents with an offensive capability. The very purpose of the BWC was to ensure that such agents are not maintained in a state in which they could be delivered against an adversary. This provision distinguished the BWC from the 1925 Geneva Protocol.
SECRECY VERSUS MULTILATERAL, RESEARCH
If the United States is genuinely committed to developing only techniques or agents that provide a defense against biological weapons, it should be advantageous to undertake this R&D on a multilateral basis. If scientists from many states collaborate to develop the best possible defenses, it reduces the chance that a group of scientists in the U.S. or elsewhere wdl be able to develop an offensive capability in BW. The lkelihood of public exposure would be too high. Further, a collaborative approach would ensure that the techmques developed will be shared among participating states, allowing the states to ensure the w e s t level of protection for their military and civilian populations. USAMRDC has involved scientists from other nations in its work,Il a useful first step that demonstrates the feasibility of a truly collaborative approach. Yet the FEIS (Sec. 4.2.2) rejects the possibility of transferring responsibility from the military to a civilian agency within the U.S. government. “The BDRP,” it states, “is a vital component of the national defense posture. While certain scientfic, programmatic, or research management responsibilities could possibly be transferred from the military, this is not the case for defense responsibilities. The DoD is responsible for recommending to the Congress adequate measures to defend the U.S. and its allies successfully. It would not be appropriate, even if it could be done institutionally, to transfer defense responsibility to another agency or organization.”” If the goal is truly defensive, there should be no concern about sharing
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either the responsibility or the research with other nations. One purported goal of the BDRP is to discourage a potential adversary from contemplating the use of biological weapons by letting it know that we have adequate countermeasures.ll This goal would be better achieved if the defensive research were coordinated internationally, and Australia did propose that research be conducted under international control.1* Article X of the BWC requires States Parties to facilitate the exchange of equipment, materials, and information regarding bacteriological agents and toxins for peaceful purposes, although it did not establish a mechanism for coordinating research. A defensive purpose is one of the peaceful purposes enumerated in Article I, so each State Party has an obligation to exchange its information on that subject. This construction of Article X was contested by Georges Fischer, who concluded that ‘Ithe [Article 101 obligation to facilitate exchanges and to cooperate does not carry over to equipment, materials, and scientific and technical information having to do with the use of agents or toxins for protective purposes.”18However, Article I includes prophylactic and protective purposes as subcategories of the broader peaceful purposes. Article X, moreover, gives each State Party a right to participate in the work undertaken for peaceful purposes by other States Parties. Thus, any other State Party to the BWC has a nght to participate in our efforts. Several mechanisms have been proposed to institutionalize the Article X obligation to collaborate and share in research, using the World Health Organization as one possible channel.2oPresident Richard Nixon advocated the multilateralization of research before the U.N. Committee on Disarmament. “Because of the rapid transmission of contagious diseases,” he said, “particularly with modem means of communications, any use of biological weapons-by any State in any conflict in the world-would endanger the people of every country. Additional restraints on biological weapons would thus contribute to the security of all peoples. A prohibition against the possession of biological weapons could also have far-reachmg benefits of another character. It could encourage international cooperation in the peaceful application of biological research, a field which may lead to immeasurable advances in the health and well-being of peoples everywhere.”21 The U.N.General Assembly called for international measures to police the BWC, resolving that “verificationshould be based on a combination of appropriate national and international measures, which would complement and supplement each other, thereby providing an acceptable system that would ensure the effective implementation of the prohibition.”22A system of five-year reviews by States Parties is used to monitor compliance with the BWC. The Second Review Conference approved a recommenda-
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tion to share information more b r ~ a d l yThis . ~ important initiative needs to be pursued more vigorously. At the same time, the States Parties to the BWC need to establish a verification system that provides both safeguards against the development of agents for offensive use and assurance to States that shared information and research will not be used to produce an agent for offensive use. The Federation of American Scientists in 1991 proposed a framework for a protocol to the BWC that would elaborate mechanisms of verification, which would include international inspection of R&D facilities.* SECRECY AND VERACITY
The Department of Defense’s lack of disclosure of detail in the BDRP is premised on a need for secrecy. As a result, the public has no fullaccount of these The DoD’s concern for secrecy, however, must be considered in lght of its record of veracity in public disclosure. To the DoD, providing information to the public is less an exercise in public enlightenment than an effort to achieve its mission more effectively. The DoD’s policy of discloslng information favorable to its mission and concealing information that places it in a negative light is in the nature of a military orgarmation. For example, the DoD has a poor record in explaining the reasons for military action, perhaps the most important public issue for a military organization. Since World War 11, the DoD has consistently failed to explain to the public the actual reason when it has sent troops into combat. The DoD’s practice has been quite consistent, irrespective of whch political party was in office. The DoD has argued that prevarication is ethically permissible: in 1962 Assistant Secretary of Defense Arthur Sylvester said that the Department must at times lie in situations of urgency, to serve national security int e r e s t ~He . ~ ~said he believed in “the h e r e n t right of the Government to lie,” and spoke of prevarication euphemistically as “generation” of news, saymg that ‘hews management” was “part of the arsenal of weaponry” of the D O D .Information ~~ dissemination as a weapon was the policy. When biological weapon research assumed prominence in the mid-l980s, h s policy had not changed. In the summer of 1986 the White House released stories that Libya was increasing terrorist activity and that the U.S. might repeat its air attack on Libya, or that Libya’s leader, Colonel Moammar Qaddd, might be overthrown. The Administration knew that Libya was not increasing terrorist activity, and it had no information that Colonel Qaddd was about to be overthrown. A memorandum from National Security Advisor John Poindexter to President Ronald Reagan stated this was a
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“disinformation program” (Poindexter’s term) to make Colonel Qaddafi think that internal opposition to him was growing, that key aides were disloyal, and that the United States would attack him. This would make Colonel Qaddafi “paranoid and ineffective” and “embolden” Libyans to overthrow him.25Again, information was used as a weapon. The Reagan Administration also prevaricated about Soviet military spending: to justdy rapidly increasing the U.S. defense budget, the Administration claimed that the Soviet military budget had grown at 12 to 15% per annum. In 1986 the CIA produced an analysis showing that Soviet military spending grew at only 2% per annum from 1975 to 1984.5 Nonconventional weapons have been a matter of particular concern to the DoD in recent years. The DoD’s assessment of the potential use of chemical weapons by Iraq was a factor in its planning for its troop deployment against Iraq in 1990-91. A few years earlier, when the DoD was attempting to justdy the BDW, the DoD tried to bolster its position by arguing that the U.S.S.R.was supporting an illegal offensive biological warfare R&D program. To “prove” its contention, the DoD alleged that an epidemic of anthrax that occurred in 1979 in Sverdlovsk, U.S.S.R., and reports of “yellow rain” by the Hmong people in Laos represented illicit BW-related activity.” The etiology of the anthrax, it claimed, was a secret biologcal warfare facility located on the outskirts of Sverdlovsk. The “yellow rain,” it said, was a toxic weapon manufactured in the U.S.S.R. These allegations, however, were not backed by conclusive evidence, and many scientists and arms-control experts disbelieved them.5J5J8J9However, the Reagan Administration held to its position that the Soviets had violated the BWC, and that this violation showed the U.S.S.R.’s propensity to break arms-control agreements. The DoD’s record on secrecy and veracity is not one that leads to great confidence: too often it has concealed information from the public or used questionable or palpably false information as a pretext for military action. It has been left to Congressional committees and the media to pry loose dormation that involved no legitimate military secrecy but that the DoD did not want revealed to the public. In the context of biological and toxin research, there must be fuller disclosure to establish public confidence. CONCLUSION
Much of the publicly stated rationale for biological weapons research has revolved around a supposed need to combat Soviet research in this field.9 With the Cold War at an apparent end, this rationale rings hollow. If the DoD has been producing agents prohibited by the Biologcal Weapons
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Convention, and retaining them in quantities suitable for use against an adversary, it rmght well determine that national security interests mandate the concealment of the fact. So long as the DoD discloses so little about the purpose and scope of specific research projects, the public cannot be confident that the U.S.is complying with the BWC. The U.S. government’s lack of candor, both with respect to its charges about alleged Soviet violations and with respect to its own program, points to a need for a mechanism to ensure that research is being conducted only within the bounds permitted by the Biological Weapons Convention. The most effective mechanism would be a more s i g dkant sharing of information on an ongoing basis among the States Parties to the BWC. Further development along this line is imperative.
REFERENCES 1. Convention on the Prohbition of the Development, Production and Stockpiling of Bacteriological (Biological)and Toxin Weapons and on Their Destruction (1972). U.S. Treaties and Other International Agreements 26583. 2. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of BacteriologicalMethods of Warfare (1925).U.S. Treaties and Other International Agreements 2657 1. 3. THOMAS,A. V. W. &A. J. THOMAS, JR. 1970. Legal Limits on the Use of Chemical and Biological Weapons. Southern Methodist University Press. Dallas, Texas. 4. Vienna Convention on the Law of Treaties. 1969. U.N. Doc. NCONF. 39/27. 5. PILLER, C. & K.R. YAMAMOTO1988. Gene Wars: Military Control over the New Genetic Technologies. Wdiam Morrow. New York. 6. U.S. SENATE. 1975. Committee to Study Governmental Operations with Respect to Intelligence Activities. U n a u t h o r d Storage of Toxic Agents. Hearings, 94th Cong., 1st Sess. U.S. Government Printlng Office. Washmgton, DC . 7. FALK,R. A. 1986. Inhibiting reliance on biological weaponry: The role and relevance of international law. Am. Univ. J. Int. Law & Policy 1:17-34. 8. WRIGHT, S. & R. L.SINSHEIMER 1983. Recombinant DNA and biological warfare. Bull. Atomic Sci. 39:20-22. 9. WRIGHT, S. 1987. New Designs for Biological Weapons. Bull. Atomic Sci.
43:43-45. 10. DEPARTMENT OF DEFENSE (DEPARTMENT OF THE ARMY). 1988. Draft Programmatic
Environmental Impact Statement on the Department of Defense Biological Defense Research Program (May 1988). 11. DEPARTMENT OF DEFENSE (DEPARTMENT OF THE ARMY). 1989. Final Programmatic Environmental Impact Statement: Biological Defense Research Program (April 1989).
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12. ANON.1987. Flghtmg biological weapons research in the courts. Bull. Atomic Sci. 43:44. 13. STRAWS, H. i 3 J. KING. 1986. The fallacy of defensive biological weapon programmes. In Biological and Toxin Weapons Today. Erhard Geissler, Ed. Oxford University Press. Oxford. 14. US. GENERAL ACCOUNTING OFFICE. 1990. Report to the Chairman, Committee on Governmental Affairs, U.S. Senate: Biological Warfare: Better Controls in DOD’s Research Could Prevent Unneeded Expenditures, GAO/NSIAD-9168. 15. DALRYMPLE, J. 1992. DoD-Sponsored Virus Vaccine Development: An Investlgator’s Perspective. Ann. N.Y. Acad. Sci. This volume. OF REPRESENTATIVES. 1980. Committee on Foreign Affairs. Strategic 16. U.S. HOUSE Implications of Chemical and Biological Warfare. Hearings before the Subcommittees on International Security and ScientificAffairs and on Asian and Pacific Affairs, 96th Cong, 2d Sess., Apr. 24. US Government Printing Office. Washmgton, DC. 17. U.N. CONFERENCE OF THE COMMITTEE ON DISARMAMENT. 1971. General and Complete Disarmament, Question of Chemical and Bacteriological (Biological) Weapons, Urgent Need for Suspension of Nuclear and ThermonuclearTests. Oct. 6, 1971. U.N. Doc. N8457, DC/234. 18. FISCHER, G. 1971. Chronique du dtsarmement: La Convention sur l’interdiction de la mise au point, de la fabrication et du stockage des armes bacttriologiques (biologiques)ou a toxines et sur leur destruction. Annu. Fr. Droit Int. 17:85-130. 19. FISCHER, G. 1980. La Conference d’Examen de la Convention interdisant les Armes Bact6riologiques ou A toxins. Annu. Fr. Droit Int. 26:89-99. 20. SIMS,N. A. 1988. The Diplomacy of Biological Disarmament: Vicissitudes of a Treaty in Force, 1975-85. St. Martin’s Press. New York. 21. U.N. CONFERENCEOFTHE COMMITTEEON DISARMAMENT 1971. General and Complete Disarmament, Question of Chemical and Bacteriological (Biological) Weapons, Urgent Need for Suspensionof Nuclear and Thermonuclear Tests. Oct. 6, 1971. U.N. Doc. N8457, DC/234 (1971),Annex C, Message from Mr. Richard M. Nixon, President of the United States of America, CCD/3 19, Feb. 23, 1971. 22. U.N. GENERAL ASSEMBLY. 1972. G.A. Res. 2827, Question of Chemical and Bacteriological (Biological)Weapons, Jan. 19, 1972, U.N. Doc. M Y 2 8 2 7
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23. ANON.1991. Implementation of the Proposals for a Verification Protocol to the Biological Weapons Convention. Federation of American Scientists. Washw o n , DC. 24. DEARIN, J, 1968 Lyndon Johnson’sCredibility Gap. Public Affairs Press. Washw o n , DC. 25. ANON.1962. US.-‘generated’ news defended by Sylvester. Washmgton Post, Dec. 7: A2. 26. WOODWARD, R. 1986. Gadhafi target of secret U.S. deception plan; Elaborate campaign included dismformation that appeared as fact in American media. Washington Post, Oct. 2: Al.
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QUESTION AND ANSWER QUESTION: The Army has over the years given the public a good accounting of its work in the biological area. Are you implying that it is hdmg somethmg? JOHN QUICLEY: The rmlitary has imperatives inconsistent with civilian norms. The notion of freedom of speech, for one thmg, is quite different in the military. Someone in the military who has information that would be potentially useful to an adversary obviously can’t speak freely. So some dlfferences arise out of the very situation. That point is related to the public information that a military organization puts out. You can‘t expect a military organization to be concerned about the edification of the public when it is malung statements. It is talung actions and it needs to justdy those actions in terms of generally accepted norms. If it is bending the norms, it’s likely to bend the exposition to conform with the norms. That’s true of military organizations everywhere in the world, not only in the United States. As long as there is a public perception that offensive weapons could be under preparation, to the extent that you let the world think that that is a possibility, other states don’t know that we’re complymg. If we are complying, it should be publicized so that the compliance is clear to everybody.
