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 lthough
the recent Geneva conference prevented a last-minute effort, led
by Cuba and Iran, to blame the United States for its failure to
reach an agreement, President Bush has gotten a lot of media flak
for refusing to join the new germ-warfare treaty. The treaty —
actually a "protocol" to the 1972
Biological Toxins and Weapons Convention (BWC) that the United
States has already joined — purports to establish enforcement
measures that will make violation of the 1972 Convention more difficult.
Coming shortly after the Bush administration torpedoed plans to
make the U.N. Small Arms Conference into a vehicle for civilian
gun prohibition, the Bush stance on biological weapons has attracted
the wrath of the international (would-be) governing class and its
American media allies. But, once again, the Bush administration
has defended public safety and the Constitution — namely, Article
II's requirement that federally authorized law enforcement be subject
to the control of the president, the Fourth Amendment's privacy
guarantee, and the Fifth Amendment's protection of property rights.
Plenty of people
would sacrifice the Bill of Rights to be safe from weapons of mass
destruction, such as biological-warfare agents. Would the proposed
protocol have made America safer from germ-warfare attacks?
The Bush administration
argued that the proposed enforcement measures would
not really stop determined violators. A far more intrusive set
of restrictions, after all, has failed to stop Saddam Hussein. Instead,
the enforcement system would burden companies in honest nations,
threatening them with bureaucratic falderal and industrial espionage.
Boosters of the protocol reply that it may not be perfect, but that
even an imperfect agreement is better than none. At least, they
say, it is a move in the right direction.
This turns
out not to be the case. As Yale Law School's Arthur Leff pointed
out, "In complex processes ... a move in the right direction
is not necessarily the right move. To pick a simple illustration,
if I am on a desert island, subsisting solely on coconuts and oysters
and beginning to hate it a lot, and across the bay from me there
is another island, lush and fertile, I do not improve my position
in life by swimming half way across." ("Economic Analysis
of Law: Some Realism About Nominalism," 60 Va. L. Rev.
451, 476 (1974).)
The history
of the 1972 convention bears this out. As Ed
Regis noted in his excellent history of germ warfare, The
Biology of Doom (H. Holt: 1999), the 1972 convention was adopted
under just such a philosophy, at a time when germ warfare research
was pretty stagnant. But the result of the convention was the greatest
increase in germ-warfare research and production ever seen. Within
months of signing the treaty, the Soviet Union violated it by starting
a massive program, overseen by a new state entity called Biopreparat.
Before the
convention, the assumption had been that any progress made by the
Soviets would simply be matched by the Americans. After the treaty,
the Soviets — and several other nations, most of them also
signatories of the 1972 treaty — saw an opportunity to steal
a march on the United States.
Not only did
the Soviets expand their stocks of traditional biowar agents such
as tularemia, brucellosis, and anthrax, but they undertook extensive
new
research into creating especially lethal and virulent strains
of smallpox.
Those stockpiles
still exist and continue to pose a threat to humanity, making a
mockery of the 1972 convention and making the "triumph"
of smallpox eradication a rather contingent one.
The Bush Administration
quite reasonably fears a repeat of this phenomenon. Enthusiasts
of the new protocol insist that this time things will be different,
with stricter enforcement and more certain sanctions for violators.
This seems doubtful. As the domestic "war on drugs" illustrates,
even within American borders our government can shut down some illegal
laboratories without even coming remotely close to closing enough
labs to dry up a plentiful supply of product. And the treatment
of North Korean nuclear nonproliferation violations
— basically bribes in exchange for (quickly broken) promises
not to do it again — suggest that the international community
can't be counted on to punish violators once they're caught.
A better strategy
would involve establishing powerful civilian biotechnology capabilities,
such that any germ warfare efforts could be swiftly countered. This
isn't so unusual; after all, it is civilian software companies that
provide the primary defense against computer viruses. (Imagine if
we had tried to control computer viruses by providing for licensing
and random inspection of civilian-owned computers.) Couple that
with a strategy of retaliation and interdiction (Israel's raid on
the Osirak
reactor is the only really successful nuclear nonproliferation effort
to date) and you have a formula for success.
After the failure
of the Geneva talks, observers expect the issue to move to the U.N.
General Assembly. (The technical term for such a change is "Going
from bad to worse.") Still, the change does offer an opportunity
for the United States to make its case clearly and candidly. The
administration should argue for controls that are truly workable,
backed up by a policy to penalize nations that use germ warfare.
The "international
community" — a euphemism for the coterie of diplomats
and the journalists who cover them — likes agreements. But
the rest of us prefer results to pieces of paper). President Bush
was right to reject a dangerous treaty that would have increased
the likelihood of the use of biological weapons.
Although the
protocol was not intended to promote biological warfare,
the protocol certainly was intended to override the American Bill
of Rights. The Cato Institute study Constitutional
Problems with Enforcing the Biological Weapons Convention, explained
that the protocol would have required searches of American businesses
without the proper legal warrants, in violation of the Fourth Amendment's
requirement that searches be based on warrants issued by a magistrate
and based on probable cause.
Article II's
appointments clause gives the president exclusive power to appoint
and remove "officers of the United States." The inspectors
would be exercising federal power — since their only power
over an American is the power granted to them by a treaty ratified
by Congress. While they could search American property at will,
the inspectors would not be appointed by the president, and would
therefore be completely immune to Constitutional checks and balances
and to accountability through the American political system.
The greatest
concern for American negotiators, however, was that the inspectors,
many of whom would come from nations (including France) where government-sponsored
industrial espionage is considered smart business, would be able
to use their "inspections" to steal American trade secrets,
particularly from pharmaceutical and biotech companies. These industrial
spies/inspectors would enjoy diplomatic immunity, and would be long
gone before their theft was discovered.
U.S. Special
Negotiator Donald Mahey made it clear that while the U.S. didn't
like the particular terms of the draft protocol, the Bush administration
supports
the eventual creation of some kind of enforcement protocol. But
rather than hope that the United Nations will produce a better protocol,
the United States ought to realize that the Biological Weapons Convention
is a proven failure — having already induced the creation of
massive stockpiles of sophisticated biowar agents by the Soviet
Union, stockpiles that remain available for terrorists or anyone
else who can get hold of them. Like the ABM treaty, the BWC was
a well-intentioned mistake by people who mistook peace agreements
for peace itself.
Article XIII,
section 2, of the BWC authorizes signatories to withdraw from the
treaty, after giving three months notice, if "extraordinary
events, related to the subject matter of the Convention, have jeopardized
the supreme interests of its country." The creation of what
is unquestionably the largest and worst germ warfare industry in
history — the Biopreperat — as a direct result of the
BWC was certainly "extraordinary," and the Biopreperat's
products continue to jeopardize the "supreme interests"
of the United States. Who knows what other countries have followed
the Soviet lead and today are producing biowar weapons because the
BWC guarantees that the United States can't fight fire with fire?
If the Bush
administration's priority is to protect the American people from
biological warfare, it must be willing to take decisive action and
withdraw from the BWC, even if it means incurring the wrath of "the
international community."
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