Janet Phelan

Geneva, Switzerland

December 19, 2011

Questions concerning the compliance of the United States with the international treaty, the Biological Weapons Convention, came to a  head recently during the Seventh Review Conference of the Convention, which is being held now in Geneva, Switzerland at the United Nations. The most recent compliance report, listed in the BWC catalogue as BWC/CONF.VII/INF.2/Add.1, has failed to quash concerns as to the reliability of statements made by the United States as to its compliance with obligations under the BWC.

The specific concerns focus on the United States' lack of disclosure of a law which amends the prior biological weapons statute. The original statute is entitled the Biological Weapons Statute--Title 18 Chapter 10 Section 175 of the U.S. code. The amended law, which is entitled The Expansion of the Biological Weapons Statute (Section 817 of the USA PATRIOT Act) radically changes the legal culpability incurred by agents of the US government for violating the statute, granting them immunity.

While this most recent report submitted to the BWC by the United States does mention that the original law was indeed amended by the USA Patriot Act, The U.S. has once again failed to disclose the revolutionary nature of this amendment and is instead persisting in reporting the text of the older statute without coming clean about the implications or even the wording of the amended version. The critical amendment to 175 literally removes U.S. agents from liability for violating legal prohibitions for possessing and transporting biological weapons. The implications are serious and deserve careful scrutiny.

Questions have also been raised as to whether or not the U.S. ever reported this legislative land- mine on the CBM ("Confidence Building Measures") Form E's. The CBM's mandate that state parties report the status of their labs, research projects and other matters of concern to the BWC.The form E mandates the disclosure of new legislation relevant to biological weapons and is considered to be politically binding. 817 was passed along with the rest of the US PATRIOT Act in 2001. What is publicly available for this time period reveals that the U.S. reported that there was nothing new to declare for both 2001 and 2002. This is revealed at the following link, on page 97. (http://www.unog.ch/80256EDD006B8954/(httpAssets)/41BF3B57E2CB6ED7C12572DD00361BA4/$file/CBM_Submissions_by_Form.pdf).

United States Ambassador Laura Kennedy and the CBM unit of the U.S. State Department have been repeatedly contacted with questions as to whether the U.S. ever disclosed Section 817 to the other parties to the Convention. No response has been forthcoming. A United States delegate to the Seventh Review Conference, Chris Park, recently offered assurances that the requests for information about CBM Form E  had been received and were being researched. He also admitted that “there may have been an oversight.”

Here is the complete text of Section 817 of the USA PATRIOT Act, with the questionable subsection underlined:

USA PATRIOT ACT OF 2001

SEC. 817 EXPANSION OF THE BIOLOGICAL WEAPONS STATUTE

Chapter 10 of title 18, United States Code, is amended--

Concerns as to the authenticity of United States' statements as to compliance with this treaty were magnified recently when Department of Homeland Security representative Daniel Gerstein chose to deny the existence of a military base in California, Sierra Army Depot. Gerstein responded to a question about reports of biological weapons being stockpiled at Sierra Army Depot with a blanket denial.

“I don't believe that base exists,” stated Gerstein during a side event hosted by the United States during the first week of the Seventh Review Conference.

Sierra Army Depot (www.sierra.army.mil) is located in Herlong, California and formerly functioned as a stockpile for nuclear weapons. Reports have come in from civilian contractors who have visited the base that the nuclear weapons have been dismantled and that troops stationed at the base are now guarding big vats of liquid.

For those keeping watch on the United States and potential deployment, Gerstein offered this unexpected tidbit:  He expects a pandemic before the end of 2013.

The BWC prohibits the development, production and stockpiling of bacteriological and toxin weapons and was signed by the United States in 1972. In its present form, the BWC has no means to verify the compliance of states with the treaty. In 2001, a verification protocol was on the table and was derailed by the delegation from the United States.