Foreign Relations of the United States, 1969–1976, Volume XXXIV, National Security Policy, 1969–1972

99. Paper by the Interdepartmental Political-Military Group in Response to NSSM 59¹

Washington, November 10, 1969.

US POLICIES ON CHEMICAL AND BIOLOGICAL WARFARE AND AGENTS

[Omitted here are the first 22 pages of the paper comprising an Introduction and Part I, which contains background information on Soviet CBW capabilities, current United States policy, United States CBW capabilities, and international arms control initiatives.]

Part II: CW AND BW Policy Issues

Introduction

Before the nature, scope and direction of a coherent US policy for CW and BW can be decided upon, several underlying issues should be addressed and resolved. These issues fall into three categories.

The first two categories deal with CW and BW programs respectively, for policy will indeed be concerned with the objectives, scope and nature of future programs. The third category deals with a set of issues concerning the public and international posture of the US on CW and BW issues. This involves legal issues, arms control policy, and US positions in international conferences and negotiations.

Before examining the various policy issues, over which there is disagreement, a few areas of agreement deserve mention.

• First, there is need for a continuing US RDT&E program to improve defenses and guard against technological surprise. Indeed, there is a consensus that, regardless of decisions on the following issues, there should be more emphasis upon defensive measures and programs.
• Second, the US should continue to work on, develop and improve controls and safety measures in all chemical and biological programs.
• Third, a requirement exists for more definitive intelligence on other nations’ CBW capabilities.
• Fourth, Declaratory policy with respect to lethal chemicals and lethal biological agents is and should continue to be “no first use.”
• Fifth, no agents except RCA’s and/or herbicides can be used except with Presidential approval.

Finally, to try to keep public opinion problems manageable, public affairs policy should be planned and implemented on an inter-agency basis in close integration with substantive policy.

I. BW Policy Issues²

A. Should the US maintain a lethal biological capability?

Pros:

1. Maintenance of such a capability could contribute to deterring the use of such agents by others.

2. Without any production capability and delivery means for lethal agents, the United States would not be able to reconstitute such a capability within likely warning times.

3. Retains an option for the United States at very little additional cost as a hedge against possible technological surprise or as a strategic option.

Cons:

1. Control of the area of effect of known BW agents is uncertain.³

2. A lethal BW capability does not appear necessary to deter strategic use of lethal BW.

3. Limits our flexibility in supporting arms control arrangements.

B. Should the US maintain a capability for use of incapacitating biologicals? (We now have two biological incapacitants in stock.)

Pros:

1. From a military standpoint, incapacitating biologicals might be an effective method of preparing for an amphibious invasion, disrupting rear-echelon military operations, or of neutralizing pockets of enemy forces.

2. Biological incapacitants could provide in some circumstances a method of capturing particular targets or areas which might be more humane than conventional weapons.

3. Without a production facility in being at the present state of readiness, it would take approximately 2–3 years, starting from scratch, to produce biological agents in militarily significant quantities.

4. Maintains the only existing US incapacitant capability for those situations where incapacitation over a period of several days is desirable.

Cons:

1. Biological incapacitants have a questionable deterrent or retaliatory value.

2. First-use of incapacitating biologicals would be construed by most nations, including most US Allies, to be contrary to international law and the Geneva Protocol.

3. An enemy may perceive no clear-cut distinction between incapacitating and lethal agents under wartime conditions.

C. Should the US maintain only an RDT&E program?

There are really two sub-issues here: (1) should the U.S. restrict its program to RDT&E for defensive purposes only or (2) should the U.S. conduct both offensive and defensive RDT&E? While it is agreed that even RDT&E for defensive purposes only would require some offensive R&D, it is also agreed that there is a distinction between the two issues. A defensive purposes only R&D program would emphasize basic and exploratory research on all aspects of BW, warning devices, medical treatment and prophylaxis. RDT&E for offensive purposes would emphasize work on mass production and weaponization and would include standardization of new weapons and agents. If a decision were made to continue an RDT&E program for defensive purposes only, it would be necessary to review the necessity for retaining existing production facilities.

(1) —in the offensive and defensive areas?

Pros:

1. Minimizes risks of technological surprise.

2. Provides knowledge and capability for physical and medical defensive measures.

3. Retains a relatively short lead time for response to new threats (depending on level of RDT&E effort).

Cons:

1. Could be construed as preparation to use biological agents in war.

2. Would degrade US capability for response in kind.

3. Would reduce US response options.

(2) —in the defensive area only? (Maintenance of a defensive RDT&E program inherently requires some offensive RDT&E effort.)

Pros:

1. Would provide some knowledge, although less than with the preceding option.

2. Would result in a more economical program.

3. Could not be construed as preparation for use in war.

Cons:

1. Would, as compared with (1) above, further degrade US capability to employ biological agents.

2. Could require disposal of certain material and facilities and loss of expertise.

3. Would increase the hazard of technological surprise.

[Omitted here is Part II, Section D, which deals with the question of whether the United States should support the draft convention prohibiting biological warfare introduced by July 10 by the United Kingdom at the ENDC in Geneva.]

II. CW Policy Issues⁴

A. Should the US maintain a capability to retaliate with lethal chemical agents? (There is no consensus on what constitutes adequate retaliatory capability.)

Pros:

1. The principal argument in favor of the development and stockpiling of lethal chemical agents is that such a capability is needed to deter possible use against US or allied forces by others in war.

2. Reliance on nuclear weapons as the sole deterrent against CW would deny to the decision-maker the lethal chemical option in retaliation, in the event US or allied forces were subject to a CW attack. Depending on the military capabilities of the enemy, an expanded conventional response could be inadequate and a nuclear response could prove too escalatory.

3. A response in kind would force an enemy to operate under the same cumbersome operational constraints (protective clothing, movement limitation and limited logistics) which would be imposed on our forces.

4. If the US were unilaterally to eliminate its lethal CW capability, this would remove a major bargaining lever for obtaining sound and effective arms control measures.

Cons:

1. The principal argument against the development and stockpiling of a lethal chemical capability is that other military means, including a whole range of nuclear weapons, are sufficient to deter the use of lethal chemicals.

2. The deterrent threat of retaliation with nuclear weapons against a CW attack could be more credible if the US were to eliminate its CW capability.

B. Should the US destroy or detoxify its stockpiles of mustard [gas]? (All stocks of phosgene have been disposed of.)

Pros:

1. Mustard is an obsolete World War I type gas which has considerably less military utility than modern nerve agents.

2. An announcement that we planned to dispose of these stocks would help to demonstrate US interest in controlling lethal chemical munitions and thus might have some political value.

Cons:

Would remove about 40% of existing lethal chemical artillery capability which although not as desirable as nerve agents do have a proven casualty producing capability. For these reasons, destruction is not appropriate until binary agents are available.

C. Should the US continue to maintain stockpiles of Chemical munitions overseas (1) in Europe, and (2) in the Pacific? (European stockpile is only in Germany)

Pros:

1. Stockpiles in close proximity to where they may be used are necessary for deterrence and for a timely and adequate response. Current stocks in Europe represent only 8–10 days of combat usage and in Asia about 15 days.

2. Not to continue to maintain chemical munitions overseas would impose a delay of at least 14 days for initial response and up to 75–90 days for sustained operations.

3. If stockpiles are not established during peacetime, it might be provocative to attempt to reinforce chemical stocks quickly in a crisis.

Cons:

1. Present stocks do not provide a significant operational capability; the expansion of overseas stocks necessary to create such a capability could involve increased political problems for the US.

2. Even maintaining present stockpiles of lethal chemical agents on foreign territory could become a source of political friction with the host country.

D. Should the US consult with the FRG concerning the US CW stockpile in Germany?

Pro:

Early discussion would help to remove a possible irritant in relations before it developed into a major issue.

Con:

If the US decides to retain these stocks, raising the issue could unnecessarily jeopardize this objective and place the FRG in an awkward position.

E. Should the US preserve a first-use option for incapacitating chemicals?⁵

Pros:

1. Successful development of an effective incapacitating agent could provide a capability to gain a military advantage, but with fewer casualties than is possible through the use of conventional, lethal chemical, or nuclear weapons.

2. Because they are non-lethal it may be possible to make these agents acceptable in world public opinion as being more humane than conventional or nuclear weapons.

3. Eliminating a first-use option without compensating political or military gains may unnecessarily deprive the US of a means of engaging in armed conflicts with resultant fewer casualties than in conventional war.

Cons:

1. First-use of incapacitating chemicals would probably be construed by most nations, including some US allies, to contravene international law and the Geneva Protocol and to be contrary to past expressions of US policy.⁶

2. First-use could lead to escalation to lethal chemical or biological warfare (if the enemy force had the capability) since the enemy might well not acknowledge any distinction between incapacitating and lethal agents.

3. First-use of incapacitating chemicals could lead to a loosening of international constraints on CW and BW, make effective arms control measures more difficult and probably bring the US considerable international and domestic criticism.

F. Should the US maintain an option for unrestricted use of RCA’s in warfare, and continue practicing this option in Vietnam? (The discussion below excludes peacetime use by US forces for crowd control and base security which is not prohibited by the Geneva Protocol or international law generally.)

Pros:

1. In many military situations, use of RCA can contribute to military effectiveness; reduce US, civilian and enemy casualties and fatalities; decrease the destruction of civilian housing and public facilities; increase the possibilities of the capture of PWs; and impede enemy avenues of approach.

Cons:

1. The use of tear gases in combat situations could blur the “no first-use” doctrine and ultimately contribute to a lowering of barriers against use and proliferation of CW capabilities in general.

2. Use of tear gases in Vietnam as an adjunct to lethal weapons may be construed by some to be contrary to past US official statements on use of tear gases in Vietnam.

3. The use of tear gases in war (even if limited to humanitarian purposes) has been considered by many nations to be contrary to customary international law and by most to be prohibited by the Geneva Protocol.

G. If the US maintains an option for the use of tear gas in war, should it be limited to “humanitarian purposes”?⁷

Pros:

1. Would permit the US to ratify the Geneva Protocol with a public interpretation that would create a minimum of international opposition.

2. Wartime use would be allowed in much the same way as riot control agents are used in time of peace, allowing for broader use than most restrictive interpretations of the Geneva Protocol would permit.

3. Maintaining this option would help us to explain our use of tear gas in Vietnam as consistent with our interpretation of the Geneva Protocol.

Cons:

1. If accepted, the military might well have to be restricted to use of tear gas in wartime to crowd control and base security which would deprive the military commander of the most useful military applications of tear gas.

2. Implementation of this principle would cast doubt on the legality of our present use of tear gas in Vietnam.

3. “Humanitarian purposes” is a term difficult to define conclusively and field commanders and others would be constantly beset by doubts about particular proposals to use tear gas, especially if its use would save the lives of their own troops, perhaps at the possible expense of the lives of the enemy.⁸

H. Should the US retain a policy permitting first-use of chemical herbicides? (There is agreement that use of herbicides as a defoliant is not contrary to international law and is less likely to have international repercussions than use against crops. Thus the main issue centers on anti-crop use. Some believe that further research is required at least on possible long-term ecological effects of herbicides, and on such effects on human embryos as has led to the recent reaffirmation and extension of the policy banning the use of Agent 2, 4, 5 T in populated areas of CONUS and in Vietnam.)

Pros:

1. Herbicides have been used effectively in Vietnam to clear the sides of roads, canals and river and around encampments, thereby reducing the possibility of enemy ambush and concealment, and providing more protection to US and SVN forces.

2. Herbicides have been used effectively in Vietnam to destroy crops, thereby making it more difficult for the enemy to secure food supplies.

Cons:

1. The use of herbicides in an anti-crop role blurs a “no first-use” doctrine.

2. If the US continues to take the position that these agents are excluded from a “no first-use” policy, it could make international control of CW more difficult.

3. It is difficult to determine that crops are solely for the consumption of the armed forces which is the sole target sanctioned by international law.

I. Should the use in war of all chemical and biological agents, including tear gas (riot control agents) and/or herbicides, require Presidential authorization?

Pro:

The political implications of the unrestricted use of tear gas and/or herbicides in war could be of such magnitude that it would be unwise to have them introduced without Presidential authority.

Cons:

1. These non-lethal weapons should not be singled out of the US arsenal for special authorization.

2. This type decision should be predelegated in order for adequate planning and logistics support, if RCA is to be used.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, NSC Institutional Files (H-Files), Box H–25, NSC Meeting, November 18, 1969. Top Secret. The NSC Secretariat sent the paper to NSC members for their consideration prior to the November 18 NSC meeting. The paper, according to the covering memorandum, had been revised following the NSC Review Group meeting on October 30. (Ibid.) See Document 97. The portions of the paper omitted here are published in Foreign Relations, 1969–1976, volume E–2, Documents on Arms Control and Nonproliferation, 1969–1972, Document 156. NSSM 59 is Document 95.
2. Relevant legal arguments are discussed in Section III E. [Footnote in the original.]
3. Although BW agents do require large safety zones, their controllability under other than a strategic attack is possible, based on results of testing to date. [Footnote in the original.]
4. Relevant legal arguments are discussed in Section III E. [Footnote in the original.]
5. The US currently does not have an effective operational incapacitating chemical capability. [Footnote in the original.]
6. DOD does not believe such would contravene international law. [Footnote in the original.]
7. “Humanitarian purposes” has never been clearly defined. By way of illustration, however, the use of tear gas in Vietnam would be authorized where civilians and enemy forces were thought to be intermingled and the purpose of using tear gas was to save civilian lives. Tear gas would not be authorized where the primary purpose was to deny enemy troops cover or concealment and make conventional weapons such as artillery or airstrikes more effective. OSD/JCS believe that no “humanitarian purpose” doctrine on the use of weapons exists. [Footnote in the original.]
8. ACDA believes that workable rules of engagement could be issued which, at a minimum, prohibited use of RCA’s in conjunction with conventional weapons such as artillery or air strikes to facilitate killing of enemy troops. OSD/JCS disagrees. [Footnote in the original.]