The United States and the Biological Weapons Convention
The Biological Weapons Convention was established in 1972 in an effort to thwart the acquisition, development, and stockpiling of biological weapons. It now has 144 signatories and 18 member states. In 1994, a Special Conference of the State Parties to the Convention formed an Ad Hoc Group in order to “strengthen the effectiveness and improve the implementation” of the regime. In July 2001, this Ad Hoc Group met in Geneva to negotiate a draft protocol on monitoring and verification. The United States withdrew from these negotiations, citing the ineffectiveness of the enforcement mechanisms, as well as the risks posed to U.S. national security and private industry by the release of proprietary information during on-site inspections.
At the fifth Review Conference of the BWC in December 2001, the United States again withdrew from the negotiations, again blaming differing opinions on the nature of enforcement. Negotiations over the draft protocol have been postponed to November of 2002.
SJIR:æ Many people believe that some version of an inspection regime, even if it is flawed, is better than none at all. Why does the United States oppose this argument?Mahley: When you have such a massively flawed inspection regime ? one that is not likely to catch or deter a cheater, and that is not likely to give you any information about a cheater ? the cheater uses that as an excuse for why you cannot punish him, even if you have other information about the fact that he is cheating. When you set up a set of standards ? they may be bad, they may be flawed ? the cheater will say that he has complied with that set of standards, even though he may or he may not have complied. For example, he may not have declared all of the places that he should have declared.æ But you have no way to tell, and you have no way to catch him at it. Once he makes that claim, though, trying to mobilize international opinion to constrain or punish that person for what he’s actually doing is much more difficult because he can argue that he’s done everything the international community has asked him to do. In that sense, having a set of standards that gives him that excuse is actually a disadvantage, as opposed to not having the regime at all.
This is what we found in the Iraq situation. There is no evidence that Iraq is not complying with the U.N. Security Council resolutions. Even though we can’t get inspectors on the ground and those inspectors don’t necessarily get the evidence they need, because we haven’t caught Iraq cheating, we cannot continue sanctions. That’s an argument we hear all the time in the U.N. Security Council. We don’t want to have that excuse of “you haven’t found them, therefore you can’t say that they’re bad guys.” We don’t want that to be an excuse for other countries to not impose the kind of penalties we think they ought to impose for cheaters.
SJIR: The Chemical Weapons Convention (CWC) also includes some of the same verification stipulations as the BWC. Also, the industries that are included in the CWC are similar to those that are included in the BWC due to the nature of pharmaceutical products, which involve many of the same discrete chemical compounds. What are the specific differences between the CWC and the BWC that make the U.S. okay with verification measures for the CWC, but not for the BWC?Mahley: Well, it’s not a verification regime for the BWC. We don’t call it a verification protocol, because verification has a very specific meaning to the United States. It requires us to be able to determine, with a high degree of confidence, the existence of an illicit program prior to the time that it becomes a military threat. We have never thought that the BWC was capable of verification of that standard, so throughout the negotiations we never once referred to it as a verification protocol. A couple of other countries did, but that was not our stance. The protocol was an attempt to try and find a way to enhance confidence in compliance with the BWC.
The differences are that for the CWC, the amount of infrastructure that you have to use for commercial production and in order to manufacture the precursors for chemical weapons, safely, is very expensive and identifiable. In the chemical weapons arena, we determined that we were able to catalog all of the places that did that, and therefore require that all of them be subject to on-site activity and investigation regularly.
The declarations for the BWC have no such infrastructure. There is no identifying mark of what’s most likely to be used to make biological weapons ? you can do it in any place that does biology. There was never a belief that you were going to be able to make the declarations for the BWC protocol as extensive as to include all potential sites of possible concern. There was never a proposal that you would be prepared to try to build an organization that was big enough to inspect that many places on a regular basis. So therefore, you lose the deterrent value that you have with the CWC. You lose the defined universe that you have with the CWC. The answer is that you simply had apples and oranges there between the approach to chemistry and the approach to biology. And one of the difficulties in the negotiations was that a number of countries looked at the chemical model and made exactly that same misapprehension, that if it worked for chemistry it must work for biology. The answer is that chemistry and biology are very different, and what worked for one does not work for the other.
SJIR: The U.S. has developed a program called “Operation Clear Vision” in order to conduct research on biological weapons. Apparently this program has created genetically modified versions of anthrax and has also created models of bombs that it thinks terrorists might build. The U.S. claims that these are for defensive purposes, but many have argued that Operation Clear Vision blurs the line between defensive and offensive research. Do you believe that the U.S. is making the same argument that cheaters would about which facilities should and should not be subject to inspection?Mahley: Well, Judith Miller, who wrote the article about Operation Clear Vision, was talking about two different things. She was talking about one program that involved an attempt to try to determine what kind of equipment other countries were building for offensive purposes. It was to determine 1) whether it would work, and 2) whether or not there were ways to counter it. Now, the idea of trying to determine what the threat is, is a perfectly legitimate defensive operation. It is perfectly within the confines of the BWC. I want to make it clear that the United States has been in compliance with the BWC. The United States has a very expensive internal review system which reviews such programs, both in their planning stages and throughout their execution to ensure that they remain compliant under our obligations to international treaties. Let me also point out that the kind of thing that Judith Miller is talking about it not currently being done by the United States government. This was indeed something that was started in a different administration than the current one. But nonetheless, when it was initiated, it was reviewed very carefully by the responsible officials to make sure that it was going to be done strictly within the limits of the BWC.
There is a separate program, that is the genetic modification question, which is taking a look at whether or not genetic modification could create a strain of pathogen which would be immune to the vaccines we produce. We have attempted to replicate that research and then to determine whether or not the vaccines remain potent against it.æ I’m not going to talk about the results of that. But again, this is work that has been done with a very strict degree of oversight to ensure that none of it was for a purpose, nor did it produce any products, which would be in violation of the BWC.
SJIR: If Iraq told the U.S. and the U.N. that it had its own domestic programs to replicate terrorist activities and to see whether its vaccines against anthrax were effective, and if it stated that it also had its own internal review system, would the U.S. accept that as legitimate? Would it not try to discover what Iraq was really doing and attempt to end that program?Mahley: If the United States had reason to believe that that was indeed the actual activity that Iraq was engaged in, then I think the United States would concede that that particular activity would be compliant with the BWC. That is not the kind of activity that Iraq has been engaged in. The kind of activity that Iraq has been engaged in, in terms of weaponization, in terms of quantity, and in terms of applications such as building missile warheads, is certainly not compliant with the BWC.
SJIR: But if Iraq was making bombs to simulate terrorist activity the U.S. would be okay with that?Mahley: No. This is not a question of simulating terrorist activity.æ This is a question of looking at designs to look at whether or not they created a legitimate terrorist capability. This is not something designed to try to simulate terrorist activity.
SJIR: What does the United States see as alternatives to the BWC?Mahley: If you want to talk about alternatives, you have to talk about alternatives and complements. The question there is twofold: First of all, we do believe that the biological threat is something that needs to be countered by all available means. Some of that may be accomplished by negotiating and strengthening the BWC. Certainly maintaining the BWC and the norm that it establishes is a very important tool for working against the biological threat there is in the world. But we also need to use other tools to complement the BWC. Export controls, where like-minded countries act to ensure that proliferators or potential rogue states do not have easy access to the capabilities to try to create programs, are another tool we can use. There are others we are looking at, but I’m not willing to explore them at this point because we have not finished our examination. But there are other tools that we think are viable in order to decrease the attractiveness of having a biological weapons program. Now, part of that is indeed trying to find a way to strengthen the BWC. That is the alternative part as opposed to the complement part (the others are complements to a BWC negotiation).
The alternatives to the BWC are things that have to be redirected in some ways. We need to narrow some of the discussions that have been going on in the Ad Hoc group over the last six and a half years. In some ways we may need to find different approaches to the same issues. But nonetheless, we certainly believe that we can explore alternative ways to try to strengthen the Convention ? this is simply a dead-end that we ran into.
SJIR: How would export controls help to solve the problem of indigenous programs ? of cases where countries already have the technology to build biological weapons? Would they still be a good complement?Mahley: Absolutely.æ Export controls do some things which are very good in terms of cutting down the access of countries to materials that they don’t have indigenously. In terms of indigenous activities, obviously export controls don’t address that particular problem.
SJIR: If complements like export controls won’t solve indigenous programs, but if it’s true that it would be impossible to inspect every type of operation that could produce biological weapons, what sort of inspection would the U.S. support?Mahley: I don’t think I’m prepared to speculate on that at the moment as we are still discussing that question.
SJIR: Some developing countries argue that export controls would hamper their efforts to develop legitimate pharmaceutical and biotech industries that they might need to counter emerging diseases and other similar threats. How do you respond to that argument?Mahley: First of all, if you look at the application of export controls over the last 10 years, I think you will find it very difficult for any country to argue that it has been denied essential humanitarian material through an export control program. I think you would find it difficult for them to deny that they have actually been able to improve, quite substantially over the last 5 to 10 years, their own capabilities in terms of pharmaceuticals or peaceful uses of biology. I have not seen evidence that there has been a specific problem with respect to emerging disease that has been attributable to an export control program.
SJIR: Do you view U.S. unilateral action, such as the steps that were taken in Operation Infinite Reach in Sudan and Afghanistan, as a viable alternative?Mahley: I think that as we recognize a threat, and as we recognize an appropriate response to that threat, there are indeed times and places where unilateral activity is both justified and necessary. I don’t want to comment on the Sudan and Afghanistan strikes because first of all, that wasn’t biology, that was chemistry, and second of all, it was motivated by other factors. But I think the principle of unilateral action is justified.
SJIR: One reason the United States gave for rejecting the inspection protocol in July was that if countries like Iraq would agree to that type of inspection, then clearly the protocol was weak because those countries would only agree to one that would still allow them to cheat. Wouldn’t that premise doom any future negotiations because if any of the countries of whom we are suspicious agree to our regimes, we will always think those regimes are flawed?Mahley: The distinction is this: the readiness that a number of rogue states were exhibiting to sign up to this particular negotiation increased palpably in Geneva following the United States’ statement that we weren’t going to sign on. They were willing to sign on because they knew that it was then safe to do so. That kind of readiness does indicate that they believe that the protocol is not going to be a significant hindrance to them. At the same time, if you have a decent agreement in place, then the reluctance of those kinds of countries to sign up can be used to create political pressure to cause them to sign up.
Now, one of the things that’s necessary to remember about Iraq is that the Iraqi biological weapons program through the Gulf War was not a violation of the BWC. This was not because biological weapons were okay until 1991 ? they weren’t ? but rather because Iraq was not a party to the BWC in 1991. Iraq acceded to the BWC as part of the requirements of the U.N. Security Council resolution following the war. So it is now a party to the BWC, but it was not at the time of the Gulf War. But the point is that you don’t have to beat somebody in combat to make them join the BWC. One hundred and forty-three countries have joined in the Convention, and those 143 countries are also eligible to join in the Protocol. If 138 of them joined the Protocol and 5 did not, I think there would be considerable political pressure on those 5 to join.
SJIR: Could one make the same argument against the United States in that the only regime that would be acceptable is one that the U.S. wouldn’t agree to?Mahley: Well, I think that that’s a serious misstatement. The regime that countries developed in this particular negotiation was one that the United States could not agree to. The judgement of many countries when the U.S. indicated we would not accept it was “This makes the regime not worth doing.” Now, that’s their judgement and we would agree with them that the regime wasn’t worth doing. At the same time, to say that the only regime that everyone else will agree to is one that the United States would not agree to is erroneous. If you can find a decent regime, we’ll agree to it.
SJIR: Russia, China, and Iran were also not fond of the inspection regime that was to be created in Geneva, so there was the possibility that if the U.S. went along with the negotiations that Russia, China, and Iran would disagree with it. Why, then, did the United States go ahead and become the country to take the political heat for opposing this inspection regime when those states might have taken the international political blame?Mahley: Let me first make clear that the United States did not stop the negotiations. We were there for the entire session and we were prepared to negotiate if someone wanted to negotiate. We said we would not be prepared to accept and recommend this document for signature. That was a political judgement. We took a very careful look at whether or not somebody would be prepared to sign it and then send it to the Senate for ratification. With respect to the other countries that you mentioned, do we believe that they are prepared to sign a document and then ignore it for ratification? Yes, we do. We believe that that’s the standard operating procedure for some of those countries. So therefore, we were not prepared to say okay because that means something to the U.N. ? it means that we are in support of that regime. But we are not. We are therefore not prepared to play that game. We don’t believe that is an appropriate way to conduct international relations.
SJIR: Some say that the U.S. shirked its international responsibility in those negotiations because it had an obligation to support the multilateral regime that it helped create. How would you answer that claim?Mahley: In our judgement, we were a lot more responsible in our approach to the negotiations than others. There were a lot of other countries that said “well, we agree it wasn’t a very good regime, but it was what we had, so therefore we should go along with it because it was better than nothing.” There have been a lot of statements about the United States rejecting these negotiations and withdrawing from multilateral processes in other areas. What I have not heard from any responsible government is an indictment of the substantive reasons the United States rejected the protocol. Our responsibility as we saw it was to make sure that the outcome of those negotiations was an effective result. We analyzed it as carefully as we could, and we came to the considered conclusion that it was not an effectiveresult.æ That, as a matter of fact, it was a counterproductive result. We believe it was our responsibility not to allow this bad product to be the standard that the international community had for the next 50 years with respect to biological weapons.
SJIR: Why do you think countries like Canada and Britain, countries who are our allies and have their own pharmaceutical industries to protect, didn’t stand up and say anything?Mahley: Other countries have to make their own evaluation about the virtue of process as an end in itself rather than process as a means to accomplishing a substantive end. I suspect that some of them came to the judgement that this would do no real harm, and that although it doesn’t do anything good, it certainly accomplishes something to put in writing. That wasn’t good enough for us. There are some countries that agree with us on some substantive points. For example, I know very well that the United Kingdom conducted a number of trial investigations with U.K. firms involved, and that they believe they can protect proprietary information. We think that probably we could too. There’s always a risk, but we believe we could probably protect proprietary information. They also believe, however, that they found out useful information about a potential biological weapons program while protecting proprietary information. I have participated in some of those practices and I have come to a very different conclusion. In some ways that is an honest difference in judgement. In other ways it is a political judgement of how important that substantive content is, and we place a higher value on that substantive content.
SJIR: Do you think the U.S. could deter a biological weapons attack, maybe with nuclear weapons? Do you think there is a stigma attached to biological weapons that would deter their use?Mahley: I certainly think there is a political stigma against the use of biological weapons. I think when you look back to the 1960s when we had an offensive biological weapons program, you see that one, although not the only, but one of the reasons we renounced it was that in a tactical military sense, biological weapons do not necessarily achieve their purpose. So that means that biological weapons are really a terror weapon, and that is something that there is certainly a political stigma attached to. If it’s done by a state then I think it will be done in a fairly extreme situation. I believe that, and this is a personal belief, not that of the U.S. government, the United States can deter a biological weapons attack by any rational state. Now that doesn’t mean there aren’t irrational states out there, and that certainly doesn’t mean that there aren’t irrational organizations out there. There are. And that is one of the things that concerns us very greatly. Can we deter an attack from an irrational state or actor? Obviously not. Can we retaliate for that? I think if we can identify the source, then the answer is yes, I think we have the retaliatory capability to inflict greater damage on them than they inflicted on us. Whether we’re willing to do that is a political question that will have to be answered in context. So we believe that deterrence is not sufficient.
SJIR: What can the U.S. do to stop terrorist groups from getting hold of biological weapons?Mahley: If I had a truly good answer to that I would probably resign from the government and go and make my Bill Gates fortune. There are some things we can try to do to reduce the desirability of biological weapons. Some of these are the idea of being able to detect a biological weapons attack sooner so there would be fewer casualties. There is also civilian preparedness in terms of being able to treat diseases from biological weapons attacks. This would also deny them some of the effectiveness in terms of casualties. Hopefully we are devoting a lot of resources to trying to ameliorate the problem, but I do not believe that we will ever be able to eliminate it.