- The Washington Times - Wednesday, August 1, 2001

In 1972, the nations of the world approved a treaty outlawing biological weapons. It was a commendable document with a major omission: It had no enforcement mechanism. A few years ago, the signatories decided they needed to come up with a system to prevent and detect violations. But it turns out they may have had it right the first time.

Last week, the Bush administration announced it would not sign a draft protocol intended to police the ban on germ warfare agents. The proposed agreement, said chief U.S. negotiator Donald Mahley, was seriously flawed in two ways: It would not catch violators, and it would jeopardize American military and business secrets. "Its flaws," an internal administration assessment concluded, "are not fixable."

The rejection, coming after more than six years of negotiations, raised a chorus of criticism from allies, champions of multilateralism and enthusiasts of arms control. When it comes to a danger as grave as that posed by biological weapons, they argued, anything is better than nothing. But the experience of trying to devise a way to enforce the ban only proves that not every problem has a solution.

The critics complain that the Bush administration's position is not only wrong but self-contradicting. "We weakened the protocol during negotiations due to concerns about the U.S. biotechnology industry," charges John Isaacs of the Council for a Livable World, "and then complain the agreement is too anemic."

Mr. Isaacs might exhibit an equally contradictory attitude, though, if he had a watchdog that bit its owner but ran away at the sight of a burglar. The draft accord is not intrusive enough to prevent determined cheating by rogue states, but it's intrusive enough to harass and punish the law-abiding. And neither defect can be addressed without worsening the other.

Unfortunately, stopping the development of biological weapons is a task that borders on the impossible. Many of the processes involved in making germ agents are virtually identical to processes used in all sorts of commercial and scientific activities even such innocuous ones as brewing beer and making yogurt. Mr. Mahley says the U.S. sites that could fall under the protocol are "in the thousands, if not the tens of thousands."

But any tyrant with a secret program should have no problem. Pathogens can be brewed in basements, garages and bathrooms in places no outsider could ever find. And if suspicions are aroused about a particular building, the evidence can be erased overnight.

The experience of U.N. arms control inspectors in Iraq illustrates the size of the challenge. For four years, they had the power to go anywhere, anytime in search of illicit weapons. Yet they failed to find evidence of a biological arms program. That wasn't because Saddam Hussein was behaving himself. In 1995, a defector reported that Iraq was working on such weapons, and the Baghdad government confirmed it.

Even supporters of the accord don't pretend it would verify compliance. "Verification has never been the objective," protests Barbara Hatch Rosenberg of the Federation of American Scientists. The point, she says, is merely to "complicate the efforts of countries to cheat."

Given the stakes here, that's a pretty puny objective. But another supporter, John Steinbruner, director of the Center for International and Security Studies at Maryland, acknowledges that it probably wouldn't even be met: "There is little chance as a practical matter that the protocol's provisions would detect a deliberate violation competently concealed."

If the accord were no worse than useless, it might deserve ratification anyway. But though it would be no terrible inconvenience to rogue dictators, it would subject private citizens in the United States and elsewhere to extensive searches by foreign inspectors.

American pharmaceutical plants, in particular, would be open to inspections that would not only disrupt their operations but might compromise their most valuable secrets. These invasions would go far beyond what is normally allowed in this country. "The searches the treaty authorizes would be unconstitutional," says University of Illinois law professor Ronald Rotunda.

Because of the way the protocol is written, most inspections would take place in advanced industrial nations, where violations are least likely to take place. Much less attention is given to the developing world, where most of the countries believed to be working on biological weapons including Iran, Libya, North Korea and Syria happen to be located.

Given the current state of verification technology, it would be futile and self-destructive to adopt the protocol. The best defense against a germ warfare attack by an outlaw nation is the same defense we have employed against nuclear attack for a half-century: the assurance that we will destroy them.

That's not a perfect remedy. But it beats entangling ourselves in an accord whose shortcomings are deep, fatal, hostile to our liberties, and beyond repair.

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