STATEMENT BY KATHLEEN C. BAILEY SENIOR FELLOW LAWRENCE LIVERMORE NATIONAL LABORATORY UNIVERSITY OF CALIFORNIA BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE

JUNE 9,1994

Mr. Chairman, Members of the Committee, I am very pleased to appear before you today on
the subject of the Chemical Weapons Convention. I am Kathleen Bailey and currently am a senior
researcher at Lawrence Livermore National Laboratory, having spent the majority of my
professional career in the study of the proliferation of weapons of mass destruction–the technical
requirements for success and the policy options to deter it. I have served the United States
Government in the Arms Control and Disarmament Agency, the Department of State, and the US
Information Agency. Among my publications on the subject of proliferation are two books whose
subject is the dangers of nuclear, chemical, biological, and missile proliferation. My remarks
today represent my own views and do not necessarily represent those of the Lawrence Livermore
National Laboratory, the University of California, or any agency of the United States
Government.

My testimony will make the case that the costs to the United States for implementing the
Chemical Weapons Convention far outweigh its benefits and that the treaty therefore should not
be ratified. The CWC is not effectively verifiable. Monies spent on verification will be wasted.
Even worse, the inspections regime run a high risk of jeopardizing US national security and
costing US industry dearly.

Most proponents of the CWC admit that the treaty is not 100% verifiable; some even
acknowledge that the flaws in the verification regime are extremely serious. When presented with
evidence that CWC verification can be neither effective nor adequate, treaty proponents often fall
back on the argument that the CWC has come too far in the negotiation process to back out now.
It is true that many fine people gave their best efforts over many years to the truly worthy goal of
achieving a verifiable ban. But the fact is that it was not achievable for technical reasons.

The Senate is now being asked for advice and consent on the Chemical Weapons Convention
(CWC). This is not a vote of sympathy for those negotiators who earnestly believed in their task
and gave unselfishly of their time. It is a vote based on whether the treaty is in the interests of US
national security and the US taxpayer.

The CWC Is Not Verifiable

The Chemical Weapons Convention was intended to accomplish two primary goals. The first
was to outlaw possession of chemical weapons. This could have been (and still can be) done
easily by amending the 1925 Geneva Protocol, which already outlaws use of chemical weapons.

The second goal, creation of an effective verification regime, required negotiation and
extensive effort. Ultimately, however, the task proved impossible. The bottom line is that there
are no technical means to detect some types of cheating.

Figure 1 displays eight principal activities outlawed by the proposed treaty. For five of these,
there are currently no technical means to detect cheating.

A clandestine plant for producing chemical agent could be constructed underground, in a
Mountainside, or amidst industrial activity. It may have no observable features which would
signal its function or draw attention. If the facility is to be dedicated only to agent production, it
can be quite small. A careful producer can employ camouflage, concealment, and deception to
help ensure that there are no observable features or activities. Such a facility would be discovered
only if a human-source leak occurred. A challenge inspection would be irrelevant because if you
cannot identify a facility, you cannot ask to inspect it.

A second type of cheating for which no technical means exist for detection is diversion of
common chemicals–those used in hundreds of commercial applications but also usable in, or as,
weapons. Temporary piping or tractor trailors could spirit away enough precursor chemicals to
make militarily significant quantities of agent. Accounting measures are neither practical nor
feasible for uncovering such cheating.¹

Production of non-classical agents is a third major path to circumvent the CWC without
detection. If the agent uses chemicals which are not on the schedules of controlled compounds,
inspectors will not be equipped to look for them. Lest you think that this means of cheating is
highly unlikely, note the warning given by Vil Mirzayanov, the Russian chemical weapons scientist
jailed in 1992 and early 1994 for having revealed Moscow’s continued covert chemical weapons
production. In discussing Russian chemical agents unknown in the West, he said, “Another major
loophole in the CWC is that the list of prohibited poisons does not include what are known as
Substance A-230, Substance A-232, Substance 33, or other toxins. If a weapon is not listed, then
it cannot legally be banned, to say nothing of being controlled.”²
The point is that if a toxic
chemical has not been invented or we in the West don’t know about it, its compounds cannot be
on the list of substances for which inspectors will be looking.

Perhaps the most likely means of cheating is also the least detectable: the stockpiling of
weapons, agents, or precursors. “Chemical munitions are small, impossible to distinguish visually
from high-explosive shells, and easy to conceal, as are bulk chemical agents.”³
Iraq, for example,
stored some of its chemical agents in readily portable, skid-mounted two-ton containers, many of
which were stored buried in the desert. UN inspectors have told me that they would never have
been discovered had Iraqis not volunteered to uncover them.

Binary agents–those made by non-lethal compounds stored separately–present an almost
risk-free avenue to cheating. In the unlikely event that the chemicals were discovered, they could
be readily explained as stored commercial chemicals. Vil Mirzayanov claims this is what Russia
has in mind: “… the ultra-lethal “Novichok” class of chemical weapons , provides an opportunity
for the military establishment to disguise production of components of binary weapons as
common agricultural chemicals….”⁴ General Anatolii
Kuntsevich, the former vice commander of
Soviet Chemical Forces and Advisor on chemical arms control, also noted the problem. He said,
” T he complication is that production of binary weapons is very difficult to detect. I don’t know
of any mechanism of control.”⁵

CWC “Verification” Entails High Risks for the US

Some people might argue that it is okay to have a verification regime which is not very
effective on the theory that a little is better than none. This might be the case were it not for the
fact that the “little bit” of verification comes at a very high cost.

No realistic discussion of financial costs to the United States has taken place because there are
too many unknowns. Some of the questions that remain unanswered include: the type of
equipment to be used, the number of routine and challenge inspections, the size of the
international bureaucracy, and the requirements for the national authority (the national body
responsible for treaty implementation). Additionally, many aspects of the treaty that were once
considered to have been finalized are now being revisited by technical working groups. Only after
the treaty is completed will good estimates on financial costs will be possible.

There are also financial costs to the US chemical industry such as data reporting, hosting of
inspections, and other treaty compliance activities. No adequate assessment has been made of
these costs. Even though as many as 10,000 US facilities may be affected by the CWC, much of
US industry has not even been made aware of the treaty and its implications. As Will Carpenter, a
representative of the Chemical Manufacturers Association, noted, ” There are 60 to 80 trade
associations whose members will also be regulated by the National Authority. ….An
overwhelming number of these companies are not aware of the implications of the Chemical
Weapons Convention….”⁶

Although financial costs of the CWC are unclear at present, the potential security costs
associated with the verification regime can be defined. To understand the nature of the risks
entailed, one must keep in mind that the CWC verification regime allows for challenge inspections
of any facility, including those that produce and store nuclear or conventional weapons.
Inspections entail: broad physical access to facilities, right to interview personnel, access to
records, and right to collect and analyze samples.

To assess the implications of CWC inspections for sensitive facilities, the US Government
conducted a series of field experiments over a four-year period.⁷
In one experiment, soil and
water samples were collected outside of a rocket-propellant production facility and were analyzed
off-site. Analysis revealed the general type of propellant being produced (strategic versus
tactical) and certain key ingredients of some classified formulations, such as oxidizers, energetic
binders, and bum rate modifiers. The point here is that samples taken off-site and analyzed with a
variety of tools can readily reveal classified information about sensitive US facilities.

The results of these findings led the US Government to develop a policy that sample collection
and analysis should be conducted on-site and the analytical tools used should be restricted.
Although this policy may be adopted, it does not solve the problem of clandestine sample
collection, removal, and analysis. Single particles of a few microns in diameter may be sufficient
for nuclear or biological analysis. Chemical analysis may require larger, but still very small
samples. It will be difficult, if not impossible, to prevent covert sample collection by a determined
inspector.

The problem of protecting information extends to US companies as well. Field trials
determined that fairly simple analytical tools (gas chromatography/mass spectrometry) can reveal
proprietary information. In one case, soil and water samples taken from the exterior of buildings
at an industrial chemical plant revealed not only the product of the operation three weeks after it
had been produced, but also process details such as intermediates and reducing agents. Loss of
such proprietary information could destroy the competitive advantage of US firms in the world
market. Even though US negotiators have tried to address this problem by placing limits on what
types of on-site analysis can be done to samples, there is little to prevent covert sample removal
by an inspector intent on industrial espionage.

It should be noted that the prospect of losing vital proprietary information is not restricted to
the chemical industry. The US pharmaceutical and biotechnology industries–world leaders in
discovery and development of new drugs, as evidenced by the fact that they originate 47% of all
new world-class drugs–also have much to lose. A US pharmaceutical firm spends about $350
million to research and develop a new compound.⁸
A challenge inspection could be misused by a
competitor nation to acquire information on the nature of a proprietary compound and its
production process–information which is literally worth millions to foreign competitors.

Although most of the security risks associated with intrusive inspections are related to sample
acquisition and analysis, access to personnel also presents problems. As Raymond McGuire has
noted, “One of the principal sources of ‘leaks’ during trial inspections was the tendency of site
personnel to reveal more than was necessary to inspectors. This seems to be a particular problem
of scientists and engineers, who, out of pride in their work, wish to share all of the details with the
‘friendly’ inspectors.”⁹ This can be detrimental to US
national security if workers in the US
nuclear weapons complex, for example, are interviewed by nefarious inspectors. Likewise, it may
be difficult for firms to keep proprietary information safe during interviews involving staff not
sensitized to the prospect of inspections being used for espionage.

Records on procurement, production, storage, and distribution–which will be open to
inspectors under the CWC–are also likely to reveal sensitive information. Such records are rarely
compiled with the idea in mind that they may be reviewed by outsiders who may be intent on
espionage. The cost of sanitizing such records may be prohibitive, even if time allowed.

In the case of US companies, there is also the question of whether it would be constitutional to
require them to make such records available. Indeed, there is question whether CWC inspections
would be a violation of the US Fourth Amendment, which protects against unreasonable searches
and seizures, in absence of a warrant and upon probable cause.

Conclusion

As mentioned at the outset, there were to be two principal benefits of the CWC–it would ban
chemical weapons possession and would create an effective verification regime. The former can
be achieved without the CWC and the latter is not now technically feasible.

A treaty with such minimal benefit might be worthy of ratification for political reasons were
there not excessive costs to be incurred. The US Senate should withhold ratification of the CWC
on the basis that it presents a high risk to US national security data and US industrial proprietary
information, and that it burdens the taxpayers with paying for verification that is not effective.

¹ US Congress, Office of Technology Assessment,
Technologies Underlying Weapons of Mass Destruction, December 1993, p. 39.

² Vil Mirzayanov, “Free to
Develop Chemical Weapons,” Wall Street Journal, May 25,1994, p. 16.

³ Office of Technology Assessment, Ibid., p. 40.

⁴ Ibid.

⁵ Will Englund, “Russia Still Doing Secret Work on Chemical
Arms,” Baltimore Sun, October 18, 1992, p. 1.

⁶ Will Carpenter, “Understanding Chemical Industry Support for the CWC and Its Concerns about
Implementing Legislation,” in Brad Roberts, editor, Ratifying the Chemical Weapons Convention
(Washington DC: The Center for Strategic & International Studies, 1994) p. 31.

⁷ The basic
conclusions of these studies are contained in Raymond R. McGuire, “The Impact of Intrusive
Inspections on Sensitive Government Facilities,” in Kathleen C. Bailey, editor, Director’s Series
on Proliferation, Lawrence Livermore National Laboratory, UCRL-LR-114070-4, May 23, 1994,
p. 101-108.

⁸ Al
Holmberg, “Industry Concerns Regarding Disclosure of Proprietary Information,” in Kathleen C.
Bailey, Director’s Series on Proliferation (see footnote 5) pp. 91-99.

⁹ Ibid., p. 104-105.