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risk of discovery.
Thus, among BWC proponents, demands that a bioweapons™ veri¬ca-
tion system be created have become something of a mantra. The logic is
elementary: there are three types of weapons of mass destruction. Two of
them (nuclear and chemical weapons) have intensive veri¬cation systems
to prohibit proliferation; there should be a similar system for bioweapons.
In these contexts, verification includes: 1) State declaration of facilities that
could constitute a prohibited weapons capability; 2) regular reports about
each facility™s activities to enable monitoring that critical items are not
wrongfully produced or diverted; and 3) on-site inspections of those facil-
ities to verify the reports™ accuracy. As the BWC contains no comparable
system, the regime for preventing bioweapons proliferation is asserted to
be uniquely de¬cient.
However, bioweapons do not neatly ¬t the nuclear or chemical non-
proliferation paradigm where only a select number of uniquely special-
ized facilities have materials or equipment that, if diverted, could readily
foster development of illegal weapons. A near-in¬nite number of biologi-
cal facilities lacking distinctive features could readily produce offensive
weapons. Few experts take seriously, therefore, the idea that States or
non-State actors will produce bioweapons at select declared sites. More
likely, if bioweapons emerge, their source will be any of the indistinguish-
able locales that are never declared or inspected. Therefore, veri¬cation
206 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

modalities “ declaration of critical facilities that must report on their activ-
ities and be inspected “ would provide information about sites where
bioweapons risks are negligible but would provide scant information about
where bioweapons are being prepared.
Although expending vast resources on super¬‚uous veri¬cation sys-
tems is unwise, States need to have information that sustains con¬dence
about each other™s compliance. Better information can: 1) lend credibility
to States™ claims that they are obeying their obligations, and 2) enhance
legal cooperation to interdict criminal activity. Indeed, many of this book™s
recommendations are designed to augment data collection and investiga-
tory authority. Chapter 5 discussed why it is important to gather informa-
tion that might help detect covert bioviolence preparations.
In the context of nonproliferation, sophisticated international capa-
bilities to track pathogens and equipment and to create a translucent pic-
ture of laboratories and their activities would make it harder for a State
to disguise a weapons program. A State pursuing bioweapons would be
compelled to have a wholly indigenous program lest its importation of
pathogens or equipment be recorded. Although not foolproof, it is certainly
better than the current situation. Robust information-gathering systems
that target wrongful activity make far more sense than veri¬cation of legal
activity.
Throughout the 1990s, BWC States Parties propounded confidence-
building measures (CBMs). They agreed to provide information about: 1)
bioscience activities including data on research scientists, biodefense
programs, past offensive programs, and vaccine production facilities; 2)
infectious disease outbreaks; and 3) their national legal infrastructure
relevant to preventing wrongful bioscience activity. States also agreed
to encourage bioresearch publication as well as scienti¬c contacts and
joint research. However, most States do not provide this information or
encourage contacts; participation in the CBMs, never high, has been
declining. Only a handful of countries including Australia, the United King-
dom, and the United States have made their reports public. Indeed, these
reports are not publicly reviewed.
Little political attention is paid to these measures so States have little
incentive to report. The reasons re¬‚ect much about what the BWC fails
to require. To collect relevant data, States must have legal authority to
collect information consonant with privacy and proprietary rights “ this
information could contain con¬dential business information that might
be lost when transmitted to other States or to an international secretariat.
The information must be reasonably complete and accurate, and failure
207
INTERNATIONAL NONPROLIFERATION

to report should be punishable. Altogether, States can comply with con-
¬dence building measures only if they have elaborate laws in place; most
do not, and the BWC lacks any mechanism to require that they do.
Complementary to these information-gathering systems should be a
process for States to substantiate or disprove their doubts about another
State™s possible violation. Questions could be submitted to the suspected
State “ a process more useful in detecting inadvertent misdeeds than out-
right criminality. Yet, this process would be a deterrent, even more so if
there were a process to investigate those suspicions. A State that tried
to proliferate prohibited weapons would know that another State could
compel an intrusive inquiry (a topic discussed more fully in Chapter 9).
Granted, no international mechanism can guarantee that a totalitarian
regime which intensely pursues bioweapons will be discovered. Saddam
Hussein™s bioweapons program was not obvious to dozens of inspectors
having essentially unfettered powers (as discussed in Chapter 3). National
technical means of gathering intelligence must not, therefore, be dis-
counted. Yet a system of inquiry backed by international investigation
can effectively reinforce the normative prohibitions against bioweapons.
This process should be supervised by an objective international author-
ity. For example, protections are needed if a State harasses another State
by raising unsubstantiated suspicions or calls for investigations of wholly
legitimate activities.


The Biodefense Dilemma
National biodefense programs present the greatest challenge to building
mutual con¬dence that States are foregoing bioweapons. In the biovio-
lence policy arena, no term is used more often with less meaning than
biodefense. Its proponents say biodefense is research on new vaccines and
other protective measures that will limit harm from bioviolence attacks.
Critics use the term to describe government-funded research into poten-
tially new military applications of bioscience. Both agree that develop-
ing vaccines to inoculate troops from anthrax, for example, is legitimate.
Harder to characterize is research seeking to understand anthrax™s mecha-
nism of lethality. More troubling is research that entails designing a “mock”
bomblet to test anthrax and the ef¬cacy of vaccines against it.
May a government engage in bioresearch in order to devise protective
measures against biothreats if that research has direct and obvious poten-
tial for a bioweapons program? Many biodefense projects could generate
an offensive capability, and a State that might truly want bioweapons may
208 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

try to cover its experimentation as biodefense. By the same logic how-
ever, a State might, in the name of biodefense, perform research on how
offensive bioweapons operate to determine what defenses or responses
are appropriate. Should nations be permitted to undertake research that
entails weaponizing a pathogen in order to prepare protective antidotes?
From a scienti¬c perspective, that research is essentially indistinguishable
from research on how to make a better bioweapon.
There is very little in a pathogen itself or the research that clearly reveals
whether the State is pursuing a bioweapons capability or a defense from
that capability. A vaccine against anthrax or plague is not only a defensive
tool, it can also support development of an offensive bioweapons capabil-
ity by enabling an aggressor to vaccinate its own troops. The dual-purpose
problem makes it very dif¬cult to draw a clear line between legitimate
and illicit research; the distinction is often only a matter of intent. Yet, if
a State can evade normative prohibitions against bioweapons by label-
ing its weapons program as “biodefense,” then the prohibition against
bioweapons will quickly become a chimera.
The problem here harkens back to how the BWC has sidestepped a pre-
cise de¬nition of what a bioweapon is. As scienti¬c advances are eroding
what little standardized meaning had attached to the term “bioweapon,”
it is increasingly dif¬cult to distinguish defensive from offensive research.
Historically, “bioweapon” denoted a warhead with massive quantities
of re¬ned agents that were speci¬cally designed for instant and catas-
trophic release; it was fairly straightforward to distinguish pure science
from weaponization. However, now a biological weapon might be merely
a test tube of pathogens that are capable of wild replication or a tiny device
that can carry a pathogen through the body. It is decreasingly realistic,
therefore, to physically distinguish a legitimate product of bioscience from
a weapon and, accordingly, to distinguish research for purposes of biode-
fense from research to produce a weapon. As this situation evolves, the
prohibition against bioweapons will get more dif¬cult to apply, providing
more room for States to develop hostile capabilities under the cover of
biodefense.
Moreover, it used to be that weapons research would likely be done
in a government laboratory, but in today™s scienti¬c environment, there
is little reason why only such facilities should be provocative. Research,
whether for weapons purposes or for benign health purposes, is routinely
conducted in the private sphere. In the modern world of bioresearch “
where governments ¬nance most private/academic researchers who often
209
INTERNATIONAL NONPROLIFERATION

perform research on behalf of the government “ trying to distinguish the
motivations of research based on its location is illusory.
No government should be castigated for trying to protect its people
from biothreats. The political implications of foregoing available research
opportunities and then suffering an attack™s unprotected consequences
are beyond calculation. Any international law that would command a
State to refrain from such research is destined to be violated. Yet, some
States™ biodefense activities, although truly intended to be defensive, might
appear to be offensive such that another State feels threatened. U.S. secu-
rity of¬cials are extremely skeptical that purported biodefense programs
of some States, notably Iran and North Korea, are truly defensive. Presum-
ably, security of¬cials in those countries share a parallel skepticism of U.S.
biodefense initiatives.

The Problem of Secrecy Reprised
Should it be permissible to classify biodefense research and thereby strictly
limit its circulation? In Chapter 6, it was suggested that bio-offenders
might take advantage of research ¬ndings to make better bioweapons.
Although considerations pertaining to freedom of thought and speech
counsel against restrictions, there is precedent for classifying informa-
tion so that it is available only via secure channels. Here, the question of
whether to restrict dissemination of biodefense research cuts precisely in
the opposite direction. Classifying defensive research in order to prevent
its wrongful acquisition and manipulation by bioweaponeers could be per-
ceived as something quite different: an effort to hide offensive research.
The more tightly that research on lethal pathogens is kept secret, the
more it suggests that it is contributing to hostile capabilities. A State that
wants to pursue bioresearch secretly so that malevolent bio-offenders do
not gain useful scienti¬c knowledge might pose no threat to another State.
Yet, other States might view secrecy not so much as a security technique to
deprive bio-offenders of breakthrough knowledge but as a ruse to cover an
offensive bioweapons program. Secret biodefense might amplify anxiety
of hostile bioweapons capabilities shrouded from sight. The problem is
that suspicions grow in darkness.
Heightened translucency is a virtue. The more that we know about a
program, the easier it will be to distinguish offense from defense and to
understand the intentions of the researcher (and his State). Open exchange
of ideas encourages scienti¬c progress and builds con¬dence that pur-
ported peaceful intentions are not a ruse. Yet, serious questions attend
210 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

any system that might enable the international community to peer directly
into sophisticated biodefense operations. The purported justi¬cation of
an inquiry might be to satisfy potential suspicions that no offensive pro-
gram is underway, but the reality might be to accomplish the precise oppo-
site by furnishing key information to malevolent actors.
Out of all this has emerged a rhetorical and unhelpful three-way contro-
versy among arms controllers, bioscientists, and counterterrorism experts.
Arms controllers stress threats of State bioweapons programs and call for
access to information in the name of making biodefense programs trans-
parent. They believe nations should divulge substantial amounts of data
to international authorities to build con¬dence that they are not pursu-
ing illicit weapons programs.40 Bioscientists tend to support the idea of
openness lest restrictions on the free ¬‚ow of scienti¬c information lead to
censorship of publications and constraints on the direction of their work.
Yet, they are concerned that broad disclosure and transparency might jeop-
ardize the con¬dentiality and hence proprietary value of their work; they
are therefore troubled by arms controllers™ de-emphasis of protection of
such information. Counterterrorism experts stress threats of malevolent
groups and call for more aggressive application of classi¬cation procedures
to limit the ¬‚ow of potentially dangerous information. They side with bio-
scientists™ concerns for loss of proprietary information but disapprove of
scientists who propound their free speech rights and who routinely share
new research with foreign colleagues. Viewed separately, each side pro-
pounds a logical position; there are reasons to object both to full secrecy
and to full revelation. Yet, a policy resolution that accommodates all sets
of objections is dif¬cult to decipher.
For its part, the United States has rhetorically pursued a policy of
maximum transparency. On September 21, 1985, the Reagan adminis-
tration issued National Security Decision Directive 189 which set forth
a national policy on the transfer of scienti¬c, technical, and engineering
information. It states, “It is the policy of this Administration that, to the
maximum extent possible, the products of fundamental research remain
unrestricted.” More recently, U.S. policy was described by the Library of
Congress:


Fundamental research is de¬ned as basic and applied, nonproprietary or
national security research, the results of which are generally published and
shared broadly within the scienti¬c community. The directive also states as
policy that “where the national security requires control, the mechanism
for control of information generated during federally funded fundamental
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research in science, technology, and engineering at colleges, universities,
and laboratories is classi¬cation.” In a November 1, 2001 letter to the Center
for Strategic & International Studies, National Security Advisor Rice stated
that . . . “the policy on the transfer of scienti¬c, technical, and engineer-
ing information set forth in NSDD-189 shall remain in effect, and we will
ensure that this policy is followed.” . . . In a May 12, 2003, memorandum to
all department heads, Energy Secretary Spencer Abraham recommended
the re-issuance of NSDD-189, citing Dr. Rice™s letter as con¬rmation that
“unless a legal basis exists to control basic research (either by classi¬cation
or some other means), it shall not be controlled.”41


Biodefense Projects of Concern
Not surprisingly, it is U.S. policy that provides the grist of controversy. Crit-
ics of some U.S. biodefense activity suggest that U.S. military initiatives
might, if pursued to their logical end, undermine the scope of and commit-
ment to the BWC. In response, U.S. biodefense proponents suggest that
the BWC is suf¬ciently ¬‚exible to tolerate some defense applications of
bioscience. If it™s not, the BWC should be adjusted, not biodefense efforts.
Questionable U.S. government initiatives include:
r building and testing a cluster munition for spreading bioagents (See
Box 8“3);42
r constructing a facility to produce microbial anthrax simulants;
r developing plans for genetic engineering of a vaccine-resistant
strain of anthrax arguably in amounts unjusti¬able for peaceful
purposes;
r pursuing a long-term effort to produce weaponized anthrax spores
for defensive testing;43
r secretly operating leading-edge bioresearch programs at former
nuclear weapons facilities; and
r pursuing a program to sequence over twenty classical bioweapons
microbes.44

Concerns go beyond classi¬ed military research. Substantial funding

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