15 November 2001

STOP US BIOWARFARE AT LANL! A NEW R.O.O.F. FOR THE BIO-WEAPONS CONVENTION

1. LANL Hopes To Boost Anthrax Response
2. A New R.O.O.F. for the Bioweapons Convention

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1. LANL Hopes To Boost Anthrax Response

"Boyle theorizes that the people behind the recent anthrax attacks were trained in the United States and probably funded by the government, which embarked on a wide variety of biological weapons research under both Clinton and Reagan." Copyright 2001 Albuquerque Journal

originated: Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954(voice)
217-244-1478(fax)
fboyle@law.uiuc.edu <mailto:fboyle@law.uiuc.edu>

Albuquerque Journal
November 11, 2001 Sunday
SECTION: Pg. 1
LENGTH: 1237 words
HEADLINE: Lab: Bio Unit Crucial
BYLINE: Jennifer McKee Journal Staff Writer

LANL Hopes To Boost Anthrax Response

LOS ALAMOS Jill Trewhella cannot hide her pride in the role her team is playing in trying to solve the anthrax puzzle.

"Yes," said the head of Los Alamos National Laboratory's Biosciences Division, "we're working on it."

Los Alamos studied anthrax for years before the disease made headlines. Now, the lab is playing a part in tracking down the source of the bacteria that has killed four Americans and sickened at least 13 others since September.

But Trewhella and the lab would like to do more.

This spring, the lab and its government overseer, the National Nuclear Security Administration, announced plans to take LANL's anthrax work into uncharted territory. The government proposes building a Biosafety Level Three laboratory at Los Alamos where scientists would work with live anthrax and other deadly, disease-causing bacteria.

The DOE has not decided on an exact site for the proposed lab and has no firm completion dates or cost figures. But such plans signal a big step for anthrax research both at Los Alamos and within the National Nuclear Security Administration.

And a controversial one.

Trewhella said the new lab, a "BSL-3" in bio-researcher slang, would allow LANL to develop faster responses to potential biological attacks or to thwart such an attack.

Others, like the Federation of American Scientists and the Illinois law professor who wrote the law banning biological weapons in America, say the proposed lab suggests something darker. They wonder whether it may be part of a larger government program of so-called "dual use" biological research, studies that can be used to stop a biological attack or launch one.

Prefab or permanent

Los Alamos' specific requests are rather modest. The lab proposes to build a 3,000-square-foot, one-story building housing three research labs. One would be BSL-3, and two labs would be similar to those Los Alamos already has, labs that will not handle living, disease-causing microbes.

The Energy Department released an environmental assessment on the proposed lab late last month. The assessment spells out the three options DOE is considering for the lab: a permanent building; a prefabricated lab; or a small, temporary prefab lab while the permanent building is under construction. The assessment starts the clock running on a 21-day window of public comment.

Even without the facility, Los Alamos lab has racked up a considerable amount of information on anthrax, the most infamous bug studied there. The lab specializes in "Amplified Fragment Length Polymorphism," a method of "fingerprinting" specific strains of anthrax.

Using a unique technique, the lab analyzes the germ's DNA to figure out where the bug originated and whether more than one genetic variety of anthrax was involved in an anthrax attack. It can also tell if someone genetically changed the bacteria, and even if he tried and failed, Trewhella said.

Using this technique, lab scientists have accumulated the world's largest library of anthrax genetic information.

But the scientists have a major hurdle, Trewhella said: They can't handle live, disease-causing anthrax. That means they must have scientists somewhere with a BSL-3 lab extract anthrax DNA and ship it to Los Alamos.

It also means that Los Alamos scientists have less control over the quality and purity of what they study. Lab scientists once ordered anthrax DNA and ended up with a sample contaminated with a common skin microbe.

Plus, lab scientists' work is growing, thanks in large part to anxiety about a possible biological attack on America and a 1996 law calling for the United States to understand the pathogens that could be used as weapons against this country and make defensive preparations.

The Energy Department responded by turning the national labs' attention to chemical and biological threats. But the agency has no BSL-3 lab and cannot handle the very bugs the agency is trying to understand.

The United States has hundreds of private and university BSL-3 labs, including one in Albuquerque at the University of New Mexico School of Medicine.

But getting access to them is increasingly difficult, according to the DOE, and some do not have the security the agency would like.

The latest anthrax attacks by mail seem to justify the work Los Alamos scientists have been doing, Trewhella said, and a BSL-3 lab would only expand that research.

"Somebody needs to be working on this," she said.

What is research?

But Francis Boyle, a law professor at the University of Illinois at Urbana-Champaign, contends that Los Alamos lab is the last place this kind of research should take place.

"It is a known United States weapons lab and the only conclusion would be that this is being done for weapons purposes," he said.

Boyle wrote the law implementing the international Biological Weapons Convention in the United States, a document that forbids developing biological weapons but does not include any kind of international verification. Boyle is also a member of the Committee for Responsible Genetics, which last weekend condemned pending genetics engineering of anthrax sponsored by the U.S. government.

The problem, he said, is that it is tough to define what is research designed to fight biological weapons and what is research designed to make them.

Susan Wright, a University of Michigan research scientist and member of the Committee for Responsible Genetics, said the line is so fuzzy, it doesn't exist.

She criticized President Bush for leaving international talks last summer aimed at finding a way to enforce the law with international inspections of biological weapons research.

Boyle points to new revelations, uncovered by The New York Times early in September, which show that the United States has already engaged in secret biological weapons research that, in his opinion, violates the convention.

Specifically, the Pentagon built a biological weapons production plant at the DOE Nevada Test Site, using products legally available on the open market between 1997 and 2000.

The CIA built and tested a prototype of a Soviet-built biological bomb.

The Pentagon now proposes genetically modifying Bacillus anthracis, splicing it with a microbe that causes food poisoning, producing a bacterium resistant to existing vaccines.

In each case, the agencies said they conducted research for defensive purposes. In the case of genetically modified anthrax, U.S. scientists would only be replicating research by Russian scientists, who pioneered the experiments and published their findings.

Even if the research isn't aimed at offensive purposes, Boyle said, simply training scientists to conduct such experiments makes for a more uncertain world it is giving people a deadly know-how that can be very difficult to control.

Boyle theorizes that the people behind the recent anthrax attacks were trained in the United States and probably funded by the government, which embarked on a wide variety of biological weapons research under both Clinton and Reagan.

He sees the proposed Los Alamos lab as part of a much larger biological weapons program, and if it opens at all, Boyle said the facility should be subject to international inspectors.

"If anything needs to be done, the Pentagon and the DOE should be out of it completely," Boyle said.

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2. A New R.O.O.F. for the Bioweapons Convention
 
The Sunshine Project
News Release - 13 November 2001
http://www.sunshine-project.org
 
Representation, Openness, Organization, and Forum for the BTWC's Future

(Austin and Hamburg - 13 November 2001) - For 26 years, the Biological and Toxin Weapons Convention (BTWC) has prohibited the development, production, stockpiling, and acquisition of all biological weapons. Beginning on November 19th, governments will meet in Geneva, Switzerland to discuss the Convention's future at its Fifth Review Conference.  It is a time for governments to show their support for the Convention by taking steps to ensure the BTWC's universal application and effectiveness in the future, including sweeping changes to the Convention's political and administrative mechanisms. This short paper explains four important areas for change and suggests steps governments can take now to improve BTWC operations and implementation.

In many places, the roof of a typical new home lasts 20 or 25 years.  If the BTWC were a house, it would be time for heavy maintenance. The Convention's prohibition of all forms of biological weapons is a solid foundation; but the BTWC's superstructures were never completed and beg for major improvement.  A new, figurative, R.O.O.F. for the Convention is an acronym that summarizes four major areas where governments should take action: "R" for representation, "O" for openness, a second "O" for organization, and "F" for forum.

Parties to the BTWC meet formally once every five years, a languid pace that technology and dangers will continue to overrun.  In half a decade, biotechnology can advance dramatically, creating threats unimaginable a few short years before.  In five years, the political complexion of an entire continent (or more) can change, and with that, strategic alliances spanning the globe. To be effective, the BTWC needs to proactively address risks before they rise to the level of major threats.  To do this, new human resources and political mechanisms that are time and technology sensitive are needed.

R is for Representation: The BTWC is widely - but not universally - ratified. There are currently 144 States Parties. States that have not ratified should join the Convention quickly. Attendance at negotiations is poor. Typically, only about a third of Parties have sent diplomats to the Ad Hoc Group's negotiations to develop a Verification Protocol. Many Parties, especially developing countries, under prioritize the negotiations and don't - or can't - budget for sending delegations.

An atmosphere and the means to ensure higher levels of participation should be created at the Review Conference. To encourage governments to attach a higher priority to the BTWC, a new Secretariat (see below) would be instrumental in by liaising with governments, providing documents, and appropriate advice and guidance. Financing for countries that need assistance can be provided for by the establishment of a meeting participation fund, based on contributions from wealthy countries, and administered by the Secretariat. This will enhance discussion and increase momentum for the BTWC, especially in parts of the world where more people live and many conflicts occur.  It will also make BTWC truly global, increasing the political cost of non-compliance and promoting wider implementation.

O is for Openness:  Since the BTWC entered into force, the role of civil society in multilateral negotiations has expanded dramatically. In the vast majority of negotiations, NGOs use their knowledge and expertise to play important roles to inform debates and delegations.  In arms control negotiations NGO work has been critical to important achievements such as the Treaty to Ban Land Mines and ongoing work on small arms control.

The BTWC's procedures, however, remain non-participatory and have been left behind by those of other instruments, particularly agreements in health, environment, and agriculture. NGO interventions are severely curtailed. The Ad Hoc Group's substantive negotiations are closed, and NGOs are only permitted to attend the BTWC's ceremonial sessions. These impediments to transparency and participation deny governments the considerable experience of NGOs and send a strong negative signal to civil society, distancing or even alienating a potentially potent force for bioweapons control.

During preparations for this Review Conference, Mexico led in calling for changes to the BTWC's Rules of Procedure to permit greater NGO participation.  Mexico's proposals are supported by a coalition including Chile, Canada, New Zealand, South Africa, and France.  The European Union has worked with NGOs on the sidelines; but, as a group, failed to embrace civil society participation. Lunchtime meetings are helpful; but not a substitute for transparency and substantive participation.

One opponent of civil society work is the United States, which has stated it believes NGOs should only be allowed in the BTWC under a gag order preventing them from speaking.  Other states that have difficulties with the idea might reflect on the benefits of greater involvement of NGOs.  For example, NGO participation would discourage incidents such as the deliberate press coverage distortions provoked by the US in July, when US spokesmen deflected criticism by inaccurately describing other Parties' stances on the Verification Protocol.

At the Review Conference, BTWC procedures should be amended to include a strong presumption of transparency and participation, including opening all sessions to civil society and allowing NGOs to speak at the discretion of the Chair after governments' opportunity to make an opening statement on each agenda item.  That being the rule in general, in limited circumstances, it may be appropriate for governments to
discuss some items in private. The BTWC could accomplish this by using practices similar to those at the Convention on Biological Diversity, which permits governments to occasionally close specific negotiating sessions.  To close a session a State must take the floor and request NGO exclusion and, in the few cases when this happens, the rule must be applied fairly and evenly to all non-parties, including industrial associations, non-profits, and other observers.

It is sad commentary on BTWC intergovernmental organization that despite being marginalized in formal operations, NGOs are the main distributors of official information about the BTWC. Parties should make all BTWC documents, working papers, and submissions available via a single authoritative distribution point, most economically and efficiently on a website, with some items sent by mail for those with limited internet access.

O is for Organization: The Review Conference must finally address the "chronic organizational deficit" of the BTWC identified by Nicholas Sims and others. New political mechanisms are needed and a permanent staff capacity is required to meet rising demand and facilitate the Convention's operations.

The BTWC lacks even a basic Secretariat.  The few professional international civil servants who work on the Convention are limited to short-term contracts or only have authority to only handle routine logistics.  Parties should establish a Secretariat and see that those that manage the Convention's business are well funded and the positions attractive to a first rate staff.  As is customary, BTWC civil servants should be drawn in a balanced way from the qualified citizenry of States Parties.  There is little standing in the way of dramatically expanding BTWC international civil service functions and, indeed, it will be necessary to carry out the work of new mechanisms.  An immediate task for the Secretariat would be assisting Parties with Confidence Building Measures, in addition to those tasks described below. The Secretariat should tightly interface with the verification organization when it begins operation.

The BTWC must also have up-to-date and more active regional political groupings.  The present blocks  - Non-Aligned, East, and West - are out of touch with political reality, fragmented and illusory.  They should be formally jettisoned. Already they are quietly transforming into political groups, and these new groups should operate in a fully visible way.  For example, alternative and flexible political groupings could lead to advances on Article X, where BTWC discussions could adopt more successful approaches to technology transfer taken in other multilateral negotiations.  Regional approaches can also bear fruit.  In the case of land mines, cooperation in the Americas, Europe, and Southeast Asia has led to important advances.  With bioweapons, an indication of the power of regional cooperation is the African Union's recent Model Law on Safety in Biotechnology, which supports the BTWC by criminalizing hostile use of genetic engineering.

F is for Forum: Forum is where change must be most dramatic. Except for the Ad Hoc Group, which is limited to discussing the Protocol, and the Review Conferences, which are retrospective and far between, the BTWC doesn't have anything resembling an appropriate forum to discuss a number of critical issues. More time and technology responsive, productive, and flexible mechanisms are urgently required.  To accomplish this, Conference of the Parties (COP) to the BTWC (or a similar mechanism empowered to take decisions) should meet once a year and a transparent and participatory open-ended subsidiary function composed of all Parties should be created to study, discuss, and approach consensus on issues assigned to it by the COP.

The subsidiary function's agenda can be divided into the two general areas of a) Technology and Risks, and b) Implementation and Confidence Building. Two groups, a Subsidiary Body on Technology and Risks, and a Subsidiary Body on Implementation and Confidence Building would be most effective, although it may be possible for a single body to alternate its agenda between these general themes if it meets more frequently.

Concretely, at the Review Conference governments should agree to meet as a Conference of the Parties (COP) to the BTWC during early 2002 for the purpose of establishing the subsidiary function and fixing its initial agenda. The subsidiary function, working tightly with the Secretariat, can initially work to improve the quality and quantity of Confidence Building Measures, promote implementation through ratification and advise regional and national law, coordinate with the verification organization, monitor and suggest COP action on emerging risks (e.g. genetic engineering of BW pathogens), implement relationships with other agreements (e.g. the Biosafety Protocol), and make recommendations for action on threats (e.g. Agent Green, anti-materiel biological agents).

Thereafter, COP meetings should occur annually, with the Subsidiary Body(ies) meeting prior to the COP so their deliberations and recommendations can be taken into account. COP and Subsidiary Body meetings should revolve geographically to more appropriately reflect the Convention's global importance in its choice of venues.  More mobile negotiations will also spur regional interest in and implementation of the Convention.

Ticking Clock: With the explosion of biotechnology and rapid development of threats to the Convention including Agent Green, disturbing biodefense research, non-lethal biological weapons, and anti-materiel biological agents, time has run out for the BTWC to develop more effective time and technology sensitive mechanisms. Adoption of the measures detailed here at the Fifth Review Conference and the finalization of the Protocol would provide the BTWC with tools to address the problems posed by new conflicts and dangerous military biotechnology strategies.  With the unparalleled rate of biotechnological and military-biotechnological investment, delay could easily spell disaster.  By 2006, presumably the year of the next regular Review Conference, the Convention could be shattered if it fails to change the status quo and address these problems now.  Governments at the Review Conference in Geneva have difficult work ahead that arguably surpasses that challenges of any previous Review Conference. Action must necessarily be concrete and constructive, and create new transparency and mechanisms to enforce prevention of biological warfare.
 

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954(voice)
217-244-1478(fax)
fboyle@law.uiuc.edu <mailto:fboyle@law.uiuc.edu>