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Proposed U.S. Biological Research Could Challenge Treaty Restrictions, Experts Charge

by David Ruppe
Global Security Newswire

WASHINGTON — Offering a controversial justification, the Bush administration is planning to perform certain biological defense activities that some arms control experts say could violate the Biological Weapons Convention and potentially render its restrictions meaningless.

The proposed work could include developing and testing new and existing biological weapons agents and delivery devices, studying new potential means of delivery, and modeling production processes, according to a government presentation delivered earlier this year. It would be funded through a newly created Homeland Security Department “Biothreat Characterization Center” and would occur primarily at a multiagency biological defense campus at Fort Detrick, Md.

The program’s principal purpose would be to inform U.S. policy-makers about the nature of the most serious and credible biological threats potentially facing the United States in order to guide defensive efforts, Maureen McCarthy, director of research and development at the Department of Homeland Security, said in an interview with Global Security Newswire.

It would comply with the treaty’s restrictions, she said, because the work is intended solely for defense.

“The treaty is intent-based. Our intent and the intent of all the biodefense programs going on in the nation right now is to develop protective measures to protect the American public,” she said.

“We are and will continue to be fully compliant with the BWC,” McCarthy added.
Nongovernmental arms control experts, however, say that elements of the plan would probably violate the 32-year-old treaty’s restriction on developing and producing agent delivery devices.

They say, furthermore, that the planned work as a whole could undermine international confidence in and adherence to the treaty because, although the work would be defensive, it would effectively give the United States a modern offensive biological weapons capability.

“This is absolutely without any question what one would do to develop an offensive biological weapons capability,” said Mark Wheelis, a professor of microbiology at the University of California-Davis.

“We’re going to develop new pathogens for various purposes. We’re going to develop new ways of packaging them, new ways of disseminating them. We’re going to harden them to environmental degradation. We’ll be prepared to go offensive at the drop of a hat if we so desire,” he said.

What the administration is planning “would look like a violation to them if anybody else did it,” said former Ambassador James Leonard, who led U.S. negotiations of the treaty.

No review has yet been done within the administration on whether the proposed programs would comply with the treaty or U.S. law, but specific proposals would be so evaluated, according to McCarthy.

A State Department official said that the department had not done a compliance review and that “relevant interagency consultations are ongoing.”

Justification Previously Used

The program’s work was ordered by President George W. Bush in a classified presidential directive and explained very generally in a White House initiative called “Biodefense for the 21st Century” announced in April (see GSN, April 28).
“The proliferation of biological materials, technologies, and expertise increases the potential for adversaries to design a pathogen to evade our existing medical and nonmedical countermeasures,” says an unclassified version of the directive.

“To address this challenge, we are taking advantage of these same technologies to ensure that we can anticipate and prepare for the emergence of this threat,” it says.
The Biothreat Characterization Center is part of a larger National Biodefense Analysis and Countermeasures Center (NBACC), also headquartered at Fort Detrick. Its plans were first publicly detailed by then-NBACC Deputy Director U.S. Army Lt. Col. George W. Korch Jr., in a February slide presentation.

The BTCC program activities could include genetically engineering new pathogens, improving the environmental stability of agents, exploring novel ways to package and deliver bioweapons agents, and modeling bioweapons production processes, according to Korch’s slides.

The program apparently would be a more coordinated and visible Homeland Security version of classified CIA and DOD efforts initiated during the Clinton administration in the late 1990s and publicly revealed during the Bush administration.

The New York Times on Sept. 4, 2001, reported details of such programs, including a CIA project that built and tested a model of a Soviet-designed bomb and the U.S. Army assembly of a mock germ factory for assessing potential terrorist capability. A Pentagon spokeswoman that same day told reporters that the Army intended to develop a copy of a genetically modified Russian anthrax strain to see whether the U.S. anthrax vaccine could handle it.

“A functional, gradual, incremental equivalent [to the BTCC], eroding the boundary between defensive and offensive research, may already have been in place for a half dozen years,” said Milton Leitenberg, an arms control expert at the University of Maryland.

Military and CIA lawyers reportedly had concluded such work was allowed by the treaty because the intent was defensive, a conclusion some other government officials reportedly disputed.

“The Biological Weapons Convention allows you to do work that is purely defensive in nature,” Pentagon spokeswoman Victoria Clarke said at the Sept. 4, 2001 press briefing.

The administration also that summer said it would oppose a negotiated protocol creating a BWC inspections mechanism, citing in part concerns that inspections might compromise U.S. biological defense secrets.

U.S. Undersecretary of State for Arms Control and International Security John Bolton in a 2002 speech argued that a country’s intent, rather than equipment, should be the used to judge treaty compliance, as offensive equipment also has uses for “the study of defensive measures against a biological attack.”

Intent vs. Letter of the Treaty

Homeland Security’s McCarthy in her interview with GSN asserted that the treaty allows nations to conduct some biological weapons activity if it is intended for defensive purposes.

The treaty is “intent-based,” she said, and “says you can’t do a whole bunch of things unless there’s a justification for prophylactic, or protective, or peaceful purposes,” she said.

Critics say that interpretation is at odds with Article 1 of the treaty. While the article’s first paragraph forbids biological weapons agent development, production, stockpiling or acquisition except for types and in quantities justifiable for “prophylactic, protective or other peaceful purposes,” it makes no such specific exception for delivery devices.

Instead, the article’s second paragraph forbids obtaining or producing “weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.”

Echoing Clarke in 2001, McCarthy suggested the Article 1 “prophylactic, protective or other peaceful purposes” applies generally to biological defense “work.”
Leonard disputed that interpretation, saying it appeared to extend the exception for agents to delivery systems.

“Paragraph one and paragraph two are written differently and one has to assume that there’s a reason for that difference,” he said.

The obvious reason, he said, is that legitimizing the development and production of delivery devices for defensive purposes would enable countries to develop and build the components for an entire weapon in the name of defense.

It “makes any kind of policing of the treaty, of assuring that it is functioning in a proper way, virtually impossible,” he said.

Mary Elizabeth Hoinkes, a former State Department general counsel, said she was convinced after reviewing the BWC negotiating record that the negotiators’ “fear of breakout” drove the more restrictive language for delivery devices.

“If you had small amounts of agent, the time to go into production and to switch from research to reduction would be a protection. But if the weapon is lying on the shelf, all you would have to do is gear up the production line,” she said.

Anticipated Costs and Benefits

Critics also charge that while particular elements of the threat characterization program would probably conflict with Article I, the program as a whole could undermine the treaty by raising doubts about U.S. compliance.

Treaty parties might “see this as dangerous to their country to have anybody, especially the trend-setter, the leader, the model, the United States, doing something that is so clearly over the edge of what the treaty permits,” Leonard said.
“The costs of creating an ambiguity that bad people predictably would shelter behind … clearly don’t outweigh this alleged advantage of seeing what kind of devices people are going to be interested in developing,” he said.

McCarthy, on the other hand, argued the proposed work is needed to help guide U.S. biological defense plans.

“This country is investing billions of dollars in biodefense right now. … It is the responsibility of the U.S. government to ensure that we are working on the right problems and so the threat characterization program that we’ve developed is really targeted toward filling in those knowledge gaps,” she said.

“Because the last thing in the world we want to do is spend several billion dollars working on yesterday’s problems and find out five years from now we weren’t targeted on working on the right problems,” she said.

Leitenberg said the administration is effectively asserting a “justification of necessity” for the proposed activities, as it did with a 2003 Justice Department memorandum on procedures for handling captives. He called it U.S. “exceptionalism” to treaty compliance, and questioned the judgment that such work is necessary.
“I argue that the whole basic threat assessment has been exaggerated” by the administration, Leitenberg said.

Interagency Discussions Ongoing

McCarthy, a former nuclear weapons and Antiballistic Missile Treaty compliance expert at the Defense Department, said Homeland Security has administration backing for the program.

“We have reviewed our program plans extensively in the interagency, through the interagency groups,” she said.

She said an extensive end-to-end review “was fully coordinated by all the departments in the government, including the State Department, [that mentions a] need to do certain types of research in order to ensure that we understand the threats,” she said.

McCarthy said, though, assessments have not yet been done for treaty compliance, and that the National Biodefense Analysis and Countermeasures Center is just now developing a compliance process with input from the White House and other agencies that would be used to review particular BTCC proposals.

“I can assure you that inside of the administration and certainly inside of the White House they are very engaged with us in the development of the compliance processes that we’re doing,” she said.

While the Biothreat Characterization Center already is running with $20 million in funding, McCarthy said it has not initiated any work that might raise compliance questions.

“The programs we have going on right now I can assure you are compliant and I take personal responsibility for those programs in my office,” she said.