20. Memorandum of Law Prepared in the Department of State Office of the Legal Adviser1
SUBJECT
- Applicability of Existing United States Statutes Governing the “Chemical and Biological Warfare Program” to Binary Chemical Weapons Currently Under Development
Chapter 32 of Title 50, United States Code, entitled “Chemical and Biological Warfare Program,” sets forth a number of restrictions on the transportation, testing, deployment, storage and disposal of chemical [Page 42] and biological weapons and their delivery systems. This memorandum is addressed to the question whether those statutory restrictions would be applicable to binary chemical munitions currently under development by the Department of Defense.
The basic restrictions contained in Title 50 are as follows:
Section 1512 prohibits
the transportation of any lethal chemical or any biological warfare agent to or from any military installation in the United States, or the open air testing of any such agent within the United States, or the disposal of any such agent within the United States until the following procedures have been implemented:
(1) the Secretary of Defense . . . has determined that the transportation or testing . . . is necessary in the interests of national security;
(2) the Secretary has brought the particulars . . . to the attention of the Secretary of [HEW], who in turn may direct the Surgeon General of the Public Health Service . . . to review such particulars with respect to any hazards to public health and safety . . . and to recommend what precautionary measures are necessary . . .;
(3) the Secretary has implemented any precautionary measures recommended . . .: Provided, however, That in the event the Secretary finds the recommendation submitted by the Surgeon General would have the effect of preventing the proposed transportation, testing, or disposal, the President may determine that overriding considerations of national security require such transportation, testing, or disposal be conducted . . . [T]he President shall report his determination and an explanation thereof to the President of the Senate and the Speaker of the House of Representatives as far in advance as practicable;
(4) the Secretary has provided notification . . .:
(A) to the President of the Senate and the Speaker of the House of Representatives at least ten days before any such transportation will be commenced and at least thirty days before any such testing or disposal will be commenced;
(B) to the Governor of any State through which such agents will be transported, such notification to be provided appropriately in advance of any such transportation.
Section 1513 provides that no funds
(1) . . . may be used for the future deployment, storage, or disposal, at any place outside the United States of
(A) any lethal chemical or any biological warfare agent, or
(B) any delivery system specifically designed to disseminate any such agent,
unless prior notice . . . has been given to the country exercising jurisdiction over such place . . .
The question whether these prohibitions apply to the binary chemicals and related munitions now under development by the Army depends upon whether, in any form or configuration in which they shall be transported, tested, deployed, stored or disposed of, they would be deemed to constitute “lethal chemical warfare agents” within the [Page 43] meaning of Chapter 32 of Title 50. It should be noted at the outset that, as a matter of textual construction, there are at least two interpretations which might be given to this language. First, it might be read as referring to any agent of lethal chemical warfare. Under this interpretation, any chemical agent which could be used with lethal effect in warfare, whether by itself or in combination with others, would be covered. Second, the phrase might be interpreted as referring to any chemical warfare agent which at the relevant point in time—that is, at the time of transport, storage, etc.—was “lethal”. Under this reading, a non-lethal agent would not be covered even though its intended use was as a precursor to a highly lethal agent, as would be the case in binary weapons. However, a lethal precursor would not be placed outside the scope of this provision by the mere fact that it was many times less lethal than the ultimate agent of which it was the precursor.
The legislative history of these provisions does not clearly resolve the textual ambiguities, reflecting, as it does, a relatively simplistic notion of the categories of weapons with which the Congress thought itself to be dealing. The Conference Report on the bill which included the cited statutory sections stated as follows:
[With an exception not pertinent here], the Conferees agreed to uniform use of the term “any lethal chemical or any biological agent.” While adopting this term, the Conferees wish to make it clear that the restrictions imposed . . . are not intended to apply to the use of chemical or biological materials which are themselves harmless to man . . .2
This language in the Conference Report appears to have been intended simply to make it clear that existing agents such as chemical herbicides and tear gas were not within the prohibitions. A similar inference may be drawn from another passage in the Report. Section 409(f) of Public Law 91–1213 prohibited the use of funds authorized to be appropriated by that Act “for the procurement of any delivery system specifically designed to disseminate any lethal chemical or any biological warfare agent . . .”
The Senate Bill would have gone further:
Except as authorized in the Senate bill, sub-section (g) of the Senate bill prohibited authorization for research, development, testing and evaluation or procurement of any chemical or biological weapon, including those for incapacitating, defoliation, or other military operations.4
Both passages from the Conference Report suggest that the term “lethal chemical warfare agent” was intended to exclude incapacitants, riot control agents, and chemical herbicides, but that no finer line was drawn. In particular, the legislative history provides no guidance for the establishment of a toxicity “threshold” below which agents would be considered not to be “lethal”.
The history also provides no guidance as to whether the lethality of an agent is to be judged in terms of its end use on the battlefield or of its characteristics at the time of the relevant transport, storage, etc. However, the fact that the statute itself is manifestly designed to ensure protection of the public health and safety in the course of the latter operations would provide a basis for a strong argument that the second interpretation is the correct one.
There remains the key question whether the precursors for binary chemical weapons now under development could be said to constitute “chemical warfare agents,” and, if so, whether they would be considered “lethal” within the meaning of Chapter 32 of Title 50. There is a technical distinction to be drawn between “agents” and “precursors”. While this distinction is important for purposes of discussion among specialists, it is very much to be doubted that any court would sustain so technical an interpretation of the statute. Such a distinction would have no significance in terms of the basic policy underlying the statute—that is, the policy of ensuring the health and safety of the civilian population—nor can Congress be thought to have had such a distinction in mind in November of 1969, long before binary weapons were prominent in public thinking on chemical weapons.
The more difficult aspect of the question is whether the precursors involved here would be deemed to be “lethal” within the statutory intendment. It is our understanding that one of the two precursors, though many times less toxic than the final agent, nonetheless has a toxicity roughly comparable to that of phosgene. While its primary hazard lies in its caustic characteristics, which pose a direct threat to anything with which it comes in contact, it also can be lethal if inhaled.
Under these circumstances, while the situation is not free from doubt, we consider it highly unlikely that a court would find it possible to distinguish between a chemical of this sort and the much more toxic chemical weapons which originally gave rise to the public concern leading to enactment of the statute. The most likely interpretation, in light of the legislative history, would be to the effect that the Congress, in using the word “lethal”, intended to exclude from the coverage of the statute only those agents which are manifestly incapable, under any normal or reasonably foreseeable circumstances, of direct lethal effect. The fact that the chemical involved may be no more hazardous than many industrial chemicals would not exclude it from the coverage [Page 45] of the statute, so long as it could be established that it was both (1) a chemical warfare agent and (2) lethal under the foregoing standard.
It should be noted that the law in question here is precisely the sort of statute which can constitute the basis for extensive litigation by a wide variety of private groups. Its interpretation is, therefore, not only a matter of possible dispute with the Congress, but also a question which could readily be brought squarely before the courts. And, like the National Environmental Policy Act of 1969, it does not attempt to establish substantive prohibitions but, rather, merely requires compliance with certain procedures. As experience under the NEPA has demonstrated, the courts are inclined to interpret such procedural provisions broadly, and the possibilities for legal obstruction on grounds of failure to comply precisely with the procedures are manifold.
Acting Assistant Legal Adviser for United Nations Affairs
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Summary: The memorandum addressed whether statutory restrictions on the transportation, testing, deployment, storage, and disposal of chemical and biological weapons were applicable to munitions currently under development by the Department of Defense.
Source: National Archives, RG 59, Central Files 1970–73, POL 27–10. Limited Official Use. All brackets and ellipses are in the original. Attached as Tab C to Document 23.
↩ - H. Rpt. 91–607, 91st Cong., 1st sess., 22 (1969), Conference Report to accompany S. 2546. [Footnote is in the original.]↩
- Armed Forces Appropriation Authorization, 1970, 83 Stat. 210; 50 U.S.C. 1516. [Footnote is in the original.]↩
- H. Rpt. 91–607, note 1 supra., at 23 (emphasis added). [Footnote is in the original.]↩