[Senate Hearing 109-784]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-784
 
U.S. POLICY AND PRACTICE WITH RESPECT TO THE USE OF RIOT CONTROL AGENTS 
                        BY THE U.S. ARMED FORCES

=======================================================================

                                HEARING

                               before the

            SUBCOMMITTEE ON READINESS AND MANAGEMENT SUPPORT

                                 of the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 27, 2006

                               __________

         Printed for the use of the Committee on Armed Services


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                      COMMITTEE ON ARMED SERVICES

                    JOHN WARNER, Virginia, Chairman

JOHN McCAIN, Arizona                 CARL LEVIN, Michigan
JAMES M. INHOFE, Oklahoma            EDWARD M. KENNEDY, Massachusetts
PAT ROBERTS, Kansas                  ROBERT C. BYRD, West Virginia
JEFF SESSIONS, Alabama               JOSEPH I. LIEBERMAN, Connecticut
SUSAN M. COLLINS, Maine              JACK REED, Rhode Island
JOHN ENSIGN, Nevada                  DANIEL K. AKAKA, Hawaii
JAMES M. TALENT, Missouri            BILL NELSON, Florida
SAXBY CHAMBLISS, Georgia             E. BENJAMIN NELSON, Nebraska
LINDSEY O. GRAHAM, South Carolina    MARK DAYTON, Minnesota
ELIZABETH DOLE, North Carolina       EVAN BAYH, Indiana
JOHN CORNYN, Texas                   HILLARY RODHAM CLINTON, New York
JOHN THUNE, South Dakota

                    Charles S. Abell, Staff Director

             Richard D. DeBobes, Democratic Staff Director

                                 ______

            Subcommittee on Readiness and Management Support

                     JOHN ENSIGN, Nevada, Chairman

JOHN McCAIN, Arizona                 DANIEL K. AKAKA, Hawaii
JAMES M. INHOFE, Oklahoma            ROBERT C. BYRD, West Virginia
PAT ROBERTS, Kansas                  BILL NELSON, Florida
JEFF SESSIONS, Alabama               E. BENJAMIN NELSON, Nebraska
SAXBY CHAMBLISS, Georgia             MARK DAYTON, Minnesota
JOHN CORNYN, Texas                   EVAN BAYH, Indiana
JOHN THUNE, South Dakota             HILLARY RODHAM CLINTON, New York


                                  (ii)

  




                            C O N T E N T S

                               __________

                    CHRONOLOGICAL LIST OF WITNESSES

U.S. Policy and Practice with Respect to the Use of Riot Control Agents 
                        by the U.S. Armed Forces

                           september 27, 2006

                                                                   Page

Benkert, Joseph A., Principal Deputy Assistant Secretary of 
  Defense for International Security Policy (Acting); Accompanied 
  by Brig. Gen. Otis G. Mannon, USAF, Deputy Director for Special 
  Operations, J-3, the Joint Staff...............................     6

                                 (iii)


U.S. POLICY AND PRACTICE WITH RESPECT TO THE USE OF RIOT CONTROL AGENTS 
                        BY THE U.S. ARMED FORCES

                              ----------                              


                     WEDNESDAY, SEPTEMBER 27, 2006

                           U.S. Senate,    
                  Subcommittee on Readiness
                            and Management Support,
                                Committee on Armed Services
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:03 a.m. in 
room SR-232A, Russell Senate Office Building, Senator John 
Ensign (chairman of the subcommittee) presiding.
    Committee members present: Senators Ensign and Akaka.
    Majority staff members present: Ambrose R. Hock, 
professional staff member; Gregory T. Kiley, professional staff 
member; Sandra E. Luff, professional staff member; Derek J. 
Maurer, professional staff member; and Lynn F. Rusten, 
professional staff member.
    Minority staff members present: Evelyn N. Farkas, 
professional staff member; Michael J. McCord, professional 
staff member; and Richard W. Fieldhouse, professional staff 
member.
    Staff assistants present: David G. Collins and Benjamin L. 
Rubin.
    Committee members' assistants present: D'Arcy Grisier and 
Alexis Bayer, assistants to Senator Ensign; Stuart C. Mallory, 
assistant to Senator Thune; Richard Kessler and Darcie Tokioka, 
assistants to Senator Akaka; and Luke Ballman, assistant to 
Senator Dayton.

       OPENING STATEMENT OF SENATOR JOHN ENSIGN, CHAIRMAN

    Senator Ensign. Good morning, everyone. I want to welcome 
all of you here, along with Ranking Member Akaka. I would like 
to congratulate Senator Akaka on his primary victory. That's 
official, that's on the record, and that's not classified. 
[Laughter.]
    Senator Akaka. Thank you.
    Senator Ensign. The Readiness and Management Support 
Subcommittee meets this morning to receive testimony on riot 
control agents, more commonly referred to as tear gas, and 
their use by our men and women in uniform.
    I'm joined here today not only by Senator Akaka, but his 
staff and my staff. It really has been a pleasure to work 
together over the last few years, and I say that with all 
sincerity, especially on issues like this that can be very 
sensitive. It's important that not only Senator Akaka and I 
work well together, but that our staffs also work well 
together.
    We are also honored to have with us today Joseph A. 
Benkert, Principal Deputy Assistant Secretary of Defense for 
International Security Policy (Acting), and Brigadier General 
Otis G. Mannon, Deputy Director for Special Operations, J-3, 
the Joint Staff.
    Welcome, gentlemen. I understand that later we will move 
into a closed session, as our witnesses tell me that their 
answers to many of the questions are classified. I appreciate 
that, but, following opening statements, I would like to ask 
just a few basic questions.
    Our focus this morning is on the use, or apparent lack of 
use, of riot control agents by our military in Afghanistan and 
Iraq. I'm interested to learn from the witnesses today their 
assessment of the current rules of engagement as they pertain 
to the use of tear gas on the battlefield.
    It is my belief that American military commanders at all 
levels should be authorized to employ riot control agents 
consistent with legislation passed last year by Congress in 
order to save the lives of American service men and women, 
coalition partners, and innocent civilians. I think we'd all 
agree that tear gas can be an essential alternative to the use 
of lethal weapons in combat. Contrary to the law, it is 
unacceptable that our military is, under current policy, banned 
from using tear gas for any purpose on the battlefield. Police 
officers in any city in America can use tear gas to gain 
control of chaotic situations and avoid the loss of life, and 
it would seem to be merely common sense that our men and women 
carrying out the global war against Islamic fascism be afforded 
that same authority.
    I know when I speak to Nevadans about this issue, they are 
astonished to learn that our military cannot use tear gas in 
the hunt for al Qaeda. I believe this is not right, and it must 
change. Last year, I sponsored legislation that made clear the 
policy of the United States is that riot control agents are not 
chemical weapons and that the President may authorize their use 
as legitimate, legal, and nonlethal alternatives to the use of 
deadly force.
    Further, that, as provided in Executive Order 11850, and 
consistent with the resolution of ratification of the Chemical 
Weapons Convention, riot control agents may be employed by 
members of the Armed Forces in war in defensive military modes 
to save lives.
    My amendment also required a report on the use of riot 
control agents by our military. That amendment last year was 
passed into law and included in the National Defense 
Authorization Act (NDAA) for Fiscal Year 2006. I'm still 
waiting on the report, which now is almost 3 months overdue.
    It is my belief that the use of riot control agents is 
wholly consistent with U.S. obligations under the laws of land 
warfare and our treaty obligations, and its effectiveness in 
certain situations is demonstrated routinely by law enforcement 
agencies all over the world.
    In my own State of Nevada, the Las Vegas Metropolitan 
Police Department tells me that they use tear gas on a regular 
basis for riot control and the extraction of barricaded 
individuals. As a matter of fact, they used tear gas within the 
last 2 months to flush out a barricaded subject from his home. 
That individual was taken into custody without injury.
    As much as Las Vegas uses tear gas, there have been no 
deaths associated with its use. In towns and streets throughout 
Iraq and Afghanistan, marines and soldiers are going house to 
house in an attempt to flush out armed terrorists. In carrying 
out this vital mission, structures are destroyed and people are 
killed, and some of that death and destruction could be avoided 
if we allowed our military to use tear gas instead of bullets.
    I don't think it's unreasonable to believe that marines and 
soldiers have lost their lives in situations that could have 
been avoided if this important tool was at their disposal.
    Secretary of Defense Donald Rumsfeld, in testimony before 
the House Armed Services Committee, described the restriction 
on the use of riot control agents as a straightjacket. He went 
on to point out that our soldiers and marines are authorized to 
shoot and kill people in situations where tear gas is 
prohibited. This is a lethal lapse in judgment.
    I don't know if the incident in Haditha, where 24 Iraqi 
civilians lost their lives, would have turned out any different 
had the marines there been allowed to use tear gas to flush out 
the civilians. What I do know is that those marines did not 
have the option of using tear gas that day, and were left only 
with the lethal alternative.
    We continually talk about providing our men and women in 
uniform all the tools they need to accomplish their mission. 
Regardless of one's personal opinion on the war in Iraq and 
Afghanistan, I think we can all agree that, by restricting the 
use of tear gas, this administration is not providing our 
military all the tools legally available to them.
    In closing, I look forward to hearing from our witnesses if 
they believe the use of tear gas by our men and women in 
uniform would be a plus or a minus on the battlefield. I'm not 
asking you to interpret international treaties. Lawyers get 
paid to do that sort of thing. I'm more interested in hearing 
whether or not the marine on the ground would benefit from 
being able to use this legal, nonlethal alternative.
    Senator Akaka, I welcome any opening statement that you may 
have.
    [The prepared statement of Senator Ensign follows:]

               Prepared Statement by Senator John Ensign

    Good morning everyone.
    The Readiness and Management Support Subcommittee meets this 
morning to receive testimony on riot control agents, more commonly 
referred to as tear gas, and their use by our men and women in uniform.
    I'm joined today by my good friend and ranking member on the 
subcommittee, Senator Akaka.
    We are also honored to have with us today Joseph A. Benkert, 
Principal Deputy Assistant Secretary of Defense for International 
Security Policy (Acting), and Brigadier General Otis G. Mannon, Deputy 
Director for Special Operations, J-3, The Joint Staff.
    Welcome gentlemen.
    I understand that later we will move into a closed session, as our 
witnesses tell me their answers to many of my questions are classified.
    I appreciate that, but following opening statements I would like to 
ask a couple of basic questions I believe the answers to which are 
unclassified.
    Our focus this morning is on the use, or apparent lack of use, of 
riot control agents by our military in Afghanistan and Iraq.
    We will be interested to learn from the witnesses today their 
assessment of the current rules of engagement as they pertain to the 
use of tear gas on the battlefield.
    It is my belief that American military commanders at all levels 
should be authorized to employ riot control agents consistent with the 
legislation passed last year by Congress in order to save the lives of 
American service men and women, coalition partners, and innocent 
civilians.
    I think we'd all agree that tear gas can be an essential 
alternative to the use of lethal weapons in combat. Contrary to the 
law, it is unacceptable that our military is, under current policy, 
banned from using tear gas for any purpose on any battlefield. Police 
officers in any city in America can use tear gas to gain control of 
chaotic situations and avoid loss of life.
    It would seem to be merely common sense that our men and women 
carrying out the global war against Islamic fascism be afforded that 
same authority.
    I know when I speak to Nevadans about this issue, they are 
astonished to learn that our military cannot use tear gas in the hunt 
for al Qaeda.
    This is not right, and it must change.
    Last year I sponsored legislation that made clear the policy of the 
United States is that riot control agents are not chemical weapons and 
that the President may authorize their use as legitimate, legal, and 
nonlethal alternatives to the use of deadly force.
    Further, that as provided in Executive Order 11850 and consistent 
with the resolution of ratification of the Chemical Weapons Convention, 
riot control agents may be employed by members of the Armed Forces in 
war in defensive military modes to save lives.
    My amendment also required a report on the use of riot control 
agents by our military. That amendment last year was passed into law 
and included in the National Defense Authorization Act for Fiscal Year 
2006.
    I'm still waiting on the report, which is now almost 3 months 
overdue.
    It is my belief that the use of riot control agents is wholly 
consistent with U.S. obligations under the laws of land warfare and our 
treaty obligations, and its effectiveness in certain situations is 
demonstrated routinely by law enforcement agencies all over the world.
    In my own State of Nevada, the Las Vegas Metropolitan Police 
Department tells me they use tear gas on a regular basis for riot 
control and the extraction of barricaded individuals.
    As a matter of fact they used tear gas within the last 2 months to 
flush out a barricaded subject from his home. That individual was taken 
into custody without injury.
    As much as Las Vegas uses tear gas, there have been no deaths 
associated with its use.
    In towns and streets throughout Iraq and Afghanistan, marines and 
soldiers are going house to house in an attempt to flush out armed 
terrorists.
    In carrying out this vital mission, structures are destroyed and 
people are killed--and some of that death and destruction could be 
avoided if we allowed our military to use tear gas instead of bullets.
    I don't think it's unreasonable to believe that marines and 
soldiers have lost their lives in situations that could have been 
avoided if this important tool was at their disposal.
    Secretary of Defense Donald Rumsfeld, in testimony before the House 
Armed Services Committee, described the restriction on the use of riot 
control agents as a ``straightjacket.''
    He went on to point out that our soldiers and marines are 
authorized to shoot and kill people in situations where tear gas is 
prohibited. This is a lethal lapse in judgment.
    I don't know if the incident in Haditha, where 24 Iraqi civilians 
lost their lives, would have turned out any different had the marines 
there been allowed to use tear gas to flush out the civilians. What I 
do know is that those marines did not have the option of using tear gas 
that day and were left only with the lethal alternative.
    We continually talk about providing our men and women in uniform 
all the tools they need to accomplish their mission.
    Regardless of one's personal opinion on the war, I think we can all 
agree that by restricting the use of tear gas this administration is 
not providing our military all the tools legally available to them.
    In closing, I look forward to hearing from our witnesses if they 
believe the use of tear gas by our men and women in uniform would be a 
plus or a minus on the battlefield.
    I'm not asking you to interpret international treaties, lawyers get 
paid to do that sort of thing.
    I'm more interested in hearing whether or not the marine on the 
ground would benefit from being able to use this legal, nonlethal 
alternative.

              STATEMENT OF SENATOR DANIEL K. AKAKA

    Senator Akaka. Thank you very much, Mr. Chairman. I want 
you to know that I feel so fortunate to be working with you and 
your staff, and I've enjoyed working with you on this 
committee.
    I also want to welcome our guests, our witnesses, to this 
hearing. Because the subject matter of the hearing will involve 
classified matters, we will conduct almost the entire hearing 
in closed session and limit ourselves only to opening 
statements at this brief portion of this hearing.
    The subject of today's hearing, the military use of riot 
control agents, has a history going back to the Vietnam war 
era. Our military in the Department of Defense (DOD) was 
involved in the creation of President Ford's Executive Order 
11850 of April 8, 1975, which established U.S. policy on the 
military use of riot control agents in war. That policy, which 
remains in full effect today, as required by law, bans the 
``first use of riot control agents in war, except in defensive 
military modes to save lives.'' According to that policy, all 
use of riot control agents in war ``is prohibited unless such 
use has presidential approval in advance.''
    Likewise, the military and the DOD were deeply involved in 
the U.S. negotiations on the Chemical Weapons Convention and in 
the process leading to Senate consideration and approval of the 
resolution of ratification of that treaty. The Chemical Weapons 
Convention bans the use of riot control agents as a method of 
warfare, which was accepted by the executive branch, the Joint 
Chiefs of Staff, the DOD, and the Senate, with a condition that 
clarifies several circumstances in which the U.S. military 
could use riot control agents in peacetime, in peacekeeping 
military operations, and not as a method of warfare. It is 
important to note that this U.S. policy and the Chemical 
Weapons Convention obligations are in our national security 
interests, because they help our military forces avoid being 
attacked with chemical warfare agents and riot control agents. 
Nobody appreciates that more than our military.
    Last year, Congress enacted section 1232 of the NDAA for 
Fiscal Year 2006 which was originally sponsored by Senator 
Ensign. That provision restates the longstanding U.S. policy on 
the military use of riot control agents, and it requires a 
report by the President on six issues related to military use 
of riot control agents. We understand that the administration 
is nearly finished preparing that report, and today's hearing 
will offer us a chance to learn the status of the 
administration's efforts. We look forward to hearing from our 
witnesses.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Senator Akaka follows:]

             Prepared Statement by Senator Daniel K. Akaka

    Mr. Chairman, I want to welcome our witnesses to this hearing. 
Because the subject matter of the hearing will involve classified 
matters, we will conduct almost the entire hearing in closed session, 
and limit ourselves only to opening statements at this brief portion of 
the hearing.
    The subject of today's hearing, the military use of riot control 
agents, has a history going back to the Vietnam war era. Our military 
and the Department of Defense (DOD) were involved in the creation of 
President Ford's Executive Order 11850 of April 8, 1975, which 
established U.S. policy on the military use of riot control agents in 
war.
    That policy, which remains in full effect today--as required by 
law--bans the ``first use of riot control agents in war, except in 
defensive military modes to save lives.'' According to that policy, all 
use of riot control agents in war ``is prohibited unless such use has 
presidential approval, in advance.''
    Likewise, the military and the DOD were deeply involved in the U.S. 
negotiations on the Chemical Weapons Convention, and in the process 
leading to Senate consideration and approval of the Resolution of 
Ratification of that treaty.
    The Chemical Weapons Convention bans the use of riot control agents 
``as a method of warfare,'' which was accepted by the executive branch, 
the Joint Chiefs of Staff, the DOD, and the Senate, with a condition 
that clarifies several circumstances in which the U.S. military could 
use riot control agents in peacetime and peacekeeping military 
operations, and not as a method of warfare.
    It is important to note that this U.S. policy and the Chemical 
Weapons Convention obligations are in our national security interests 
because they help our military forces to avoid being attacked with 
chemical warfare agents and riot control agents. Nobody appreciates 
that more than our military.
    Last year, Congress enacted section 1232 of the NDAA of Fiscal Year 
2006, which was originally sponsored by Senator Ensign. That provision 
restates the longstanding U.S. policy on the military use of riot 
control agents, and requires a report by the President on six issues 
related to military use of riot control agents.
    We understand that the administration is nearly finished preparing 
that report, and today's hearing will offer us a chance to learn the 
status of the administration's efforts. We look forward to hearing from 
the witnesses.

    Senator Ensign. Thank you, Senator Akaka.
    Mr. Benkert, do you have an opening statement?
    Mr. Benkert. Thank you, Mr. Chairman. I will submit an 
opening statement on behalf of both myself and General Mannon.

  STATEMENT OF JOSEPH A. BENKERT, PRINCIPAL DEPUTY ASSISTANT 
    SECRETARY OF DEFENSE FOR INTERNATIONAL SECURITY POLICY 
   (ACTING); ACCOMPANIED BY BRIG. GEN. OTIS G. MANNON, USAF, 
  DEPUTY DIRECTOR FOR SPECIAL OPERATIONS, J-3, THE JOINT STAFF

    Mr. Benkert. Mr. Chairman, Ranking Member Akaka, it's my 
pleasure, and Brigadier General Mannon's pleasure, to appear 
before you today to testify about U.S. policy and practice with 
respect to the use of riot control agents by the U.S. Armed 
Forces.
    Mr. Chairman, I would like to begin by recognizing your 
work, Senator Akaka's work, and that of this subcommittee, on 
this important issue. Like you, this administration wants to 
ensure that our men and women in uniform have the full range of 
options available to them to carry out their mission. Your 
amendment on riot control agents in the NDAA for Fiscal Year 
2006 has furthered this cause. The presidential report required 
by this act is comprehensive and will be provided in the coming 
weeks. We have surveyed and catalogued the regulations, 
guidance, and training on riot control agents in this report. 
We have obtained inputs from the military departments and from 
the combatant commanders. The information that I'll share with 
you today is similar to, and consist with, the information that 
we've compiled for this report.
    The policy governing the use of riot control agents by the 
U.S. Armed Forces, as you and Senator Akaka have said, is 
expressed principally in the Chemical Weapons Convention, the 
resolution of ratification of the Chemical Weapons Convention, 
and Executive Order 11850. The administration agrees with the 
policy statement in the NDAA for Fiscal Year 2006, section 
1232, colloquially sometimes called the ``Ensign Amendment,'' 
which says, ``It is the policy of the United States that riot 
control agents are not chemical weapons, and that the President 
may authorize their use as legitimate, legal, and nonlethal 
alternatives to the use of force that, as provided in Executive 
Order 11850 and consistent with the resolution of ratification 
of the Chemical Weapons Convention, may be employed by members 
of the Armed Forces in war, in defensive military modes, to 
save lives, including the illustrative purposes cited in 
Executive Order 11850.''
    As you are well aware, the capabilities of weapons or 
weapons systems, both lethal and nonlethal, utilized by our 
military, and the tactics and procedures for their use, are 
inherently sensitive. Riot control agents are one of the 
nonlethal weapons that our military may use, under certain 
circumstances, and thus most of the issues covered by the 
report will need to be addressed in the closed session.
    I would also like to note that when I refer to riot control 
agents in my testimony, I'm referring to chemicals not listed 
in a Chemical Weapons Convention schedule which can produce 
rapidly in humans sensory irritation or disabling physical 
effects which disappear within a short time following 
termination of exposure. This includes, for example, tear gas 
and pepper spray. I am not referring to the broader class of 
nonchemical, nonlethal weapons that may sometimes be used for 
riot control or other similar purposes, such as foams, water 
cannons, beanbags, or rubber bullets.
    The DOD has issued regulations, doctrine, and training 
materials providing guidance as to when riot control agents may 
be used. As I've noted, the primary legal bases for these 
materials are Executive Order 11850, Renunciation of Certain 
Uses in War of Chemical Herbicides and Riot Control Agents, 
which was issued by President Ford in 1975, and the Convention 
on the Prohibition of Development, Production, Stockpiling, and 
Use of Chemical Weapons and on their Destruction, commonly 
referred to as the Chemical Weapons Convention, which the 
United States ratified in 1997.
    I need to emphasize that the use of riot control agents 
must comply with applicable law, including treaties and the law 
of war. Any use must be consistent with our obligations under 
the Chemical Weapons Convention, and any use must be consistent 
with Executive Order 11850.
    It may be difficult for many Americans to understand why 
their Armed Forces can use riot control agents only in defined 
circumstances when they see their local law enforcement 
agencies using them effectively every day, as Senator Ensign 
has noted. The United States military must operate within the 
parameters of the Chemical Weapons Convention and Executive 
Order 11850, which constrain the ability of our Armed Forces to 
use riot control agents in offensive operations in wartime and 
obviously do not apply to our colleagues in law enforcement.
    The military departments have established requirements that 
personnel receive training on riot control agents before they 
are authorized to carry or employ them. I would note that this 
is not the typical training that recruits receive during boot 
camp to teach them to protect themselves against chemical 
agents, but specialized training on riot control agent 
deployment.
    Annual training of such servicemembers also provides an 
opportunity for supplemental training in the use of riot 
control agents. For example, in accordance with the Geneva 
Conventions of 1949 and the Hague Convention of 1907, military 
personnel who may employ riot control agents--such as military 
police--are required to receive annual instruction of the Law 
of Armed Conflict, which includes the subject on the 
permissible use of riot control agents when relevant to 
operational duties.
    I would emphasize, as I have just explained, that DOD, 
military department, and combatant command directives, 
doctrine, regulation, operational plans, and training materials 
are consistent with U.S. law and policy on the use of riot 
control agents; namely, the Chemical Weapons Convention and 
Executive Order 11850. This includes authorization and approval 
guidance, as well as employment procedures and practices.
    Before U.S. military personnel may use riot control agents, 
they must have proper authorization. Pursuant to Executive 
Order 11850, presidential approval is required prior to riot 
control agent use in war in defensive military modes to save 
lives. Separate regulations delegate to the Secretary of 
Defense advance authority to authorize a use of riot control 
agents in peacetime. However, certain peacetime uses of riot 
control agents have been delegated to the combatant commands 
and the Chiefs of Services, such as uses at U.S. facilities and 
installations for riot control, installation security, civil 
disturbance, operations training, and noncombatant emergency 
evacuation operations. When U.S. forces have employed riot 
control agents, they have done so in accordance with U.S. and 
international law, policy, and regulations, both in the United 
States and abroad.
    In conjunction with the preparation of the report required 
by your amendment, we initiated a review of the authorities 
applicable to the use of riot control agents, under various 
circumstances, in light of the changing environment in which 
armed conflicts are taking place. In such a dynamic 
environment, the peacekeeping, law enforcement, and traditional 
battlefield roles of deployed units may be present at different 
times within the same theater of operations. The use of riot 
control agents will be evaluated based on the particular unit 
or mission involved and the particular facts and circumstances 
of the mission at the requested time.
    I would like to conclude, Mr. Chairman, by highlighting the 
continuing validity of Executive Order 11850. Executive Order 
11850, which has not been modified or rescinded since it was 
issued, remains in effect.
    Thank you, again, Mr. Chairman, for your personal attention 
to this issue. General Mannon and I would be happy to respond 
to any questions you may have in the closed session.
    [The prepared statement of Mr. Benkert follows:]

                  Prepared Statement by Joseph Benkert

    Chairman Ensign, Ranking Member Akaka, and members of the 
subcommittee, it is my pleasure to appear before you today to testify 
regarding ``U.S. policy and practice with respect to the use of riot 
control agents by the U.S. Armed Forces.''
    Mr. Chairman, I would like to begin by recognizing your work on 
this important issue. Like you, this administration wants to ensure 
that our men and women in uniform have the full range of options 
available to them to carry out their mission. Your amendment on riot 
control agents to the National Defense Authorization Act for Fiscal 
Year 2006 has furthered this cause. The presidential report required by 
this act is comprehensive and will be provided in the coming weeks. We 
have surveyed and cataloged regulations, guidance, and training on riot 
control agents. We have obtained inputs from the military departments 
and views of the combat combatant commanders. The information I will 
share with you today is similar to and consistent with the information 
that we have compiled for the report.
    The policy governing the use of riot control agents by the U.S. 
Armed Forces is expressed principally in the Chemical Weapons 
Convention, the resolution of ratification of the Chemical Weapons 
Convention, and Executive Order 11850. The administration agrees with 
the policy statement in the National Defense Authorization Act for 
Fiscal Year 2006, section 1232 (the ``Ensign Amendment''); namely, ``It 
is the policy of the United States that riot control agents are not 
chemical weapons and that the President may authorize their use as 
legitimate, legal, and nonlethal alternatives to the use of force that, 
as provided in Executive Order 11850 (40 Fed. Reg. 16187) and 
consistent with the resolution of ratification of the Chemical Weapons 
Convention, may be employed by members of the Armed Forces in war in 
defensive military modes to save lives, including the illustrative 
purposes cited in Executive Order 11850.''
    As you are well aware, the capabilities of weapons or weapons 
systems, both nonlethal and lethal, utilized by our military, and 
tactics and procedures for their use, are inherently sensitive. Riot 
control agents are one of the nonlethal weapons that our military may 
use under certain circumstances and thus most of the issues covered by 
the report will need to be addressed in closed session.
    I also would like to note that when I refer to ``riot control 
agents'' in my testimony today I am referring to chemicals not listed 
in a Chemical Weapons Convention schedule which can produce rapidly in 
humans sensory irritation or disabling physical effects which disappear 
within a short time following termination of exposure. This includes 
for example, tear gas and pepper spray. I am not referring to the 
broader class of nonchemical nonlethal weapons that may sometimes be 
used for riot control or other similar purposes such as foams, water 
cannons, bean bags, or rubber bullets.
    The Department of Defense has issued regulations, doctrine, and 
training materials providing guidance as to when riot control agents 
may be used. As I have noted, the primary legal bases for these 
materials are Executive Order 11850, Renunciation of Certain Uses in 
War of Chemical Herbicides and Riot Control Agents, which was issued by 
President Ford in 1975, and the Convention on the Prohibition of 
Development, Production, Stockpiling and Use of Chemical Weapons and on 
Their Destruction (commonly referred to as the ``Chemical Weapons 
Convention''), which the United States ratified in 1997. I need to 
emphasize that use of riot control agents must comply with applicable 
law, including treaties and the law of war. Any use must be consistent 
with our obligations under the Chemical Weapons Convention and any use 
must be consistent with Executive Order 11850.
    It may be difficult for many Americans to understand why their 
Armed Forces can use riot control agents in only defined circumstances 
when they see their local law enforcement agencies using them 
effectively every day. The United States military must operate within 
the parameters of the Chemical Weapons Convention and Executive Order 
11850, which constrain the ability of our Armed Forces to use riot 
control agents in offensive operations in wartime and do not apply to 
our colleagues in law enforcement.
    The military departments have established requirements that 
personnel receive training on riot control agents before they are 
authorized to carry or employ them. I would note that this is not the 
typical training that recruits receive during boot camp to teach them 
to protect themselves against chemical agents, but specialized training 
on riot control agent deployment.
    Annual training of servicemembers also provides an opportunity for 
supplemental training in the use of riot control agents. For example, 
in accordance with the Geneva Conventions of 1949 and the Hague 
Convention of 1907, military personnel who may employ riot control 
agents, such as military police, are required to receive annual 
instruction on the law of armed conflict, which includes the subject of 
the permissible use of riot control agents, when relevant to 
operational duties.
    I would emphasize, as I have just explained, that Department of 
Defense, military department, and combatant command directives, 
doctrine, regulations, operational plans, and training materials are 
consistent with U.S. law and policy on the use of riot control agents, 
namely the Chemical Weapons Convention and Executive Order 11850. This 
includes authorization and approval guidance, as well as employment 
procedures and practices.
    Before U.S. military personnel may use riot control agents, they 
must have the proper authorization. Pursuant to Executive Order 11850, 
Presidential approval is required prior to riot control agent use in 
war in defensive military modes to save lives. Separate regulations 
delegate to the Secretary of Defense advance authority to authorize the 
use of riot control agents in peacetime. However, certain peacetime 
uses of riot control agents have been delegated to the combatant 
commands and chiefs of Services such as uses at U.S. facilities and 
installations for riot control, installation security, civil 
disturbance operations training, and noncombatant emergency evacuation 
operations.
    When U.S. Armed Forces have employed riot control agents, they have 
done so in accordance with U.S. and international law, policy, and 
regulations both in the United States and abroad.
    In conjunction with the preparation of the report required by the 
Ensign Amendment, we initiated a review of the authorities applicable 
to the use of riot control agents under various circumstances in light 
of the changing environment in which armed conflicts are taking place. 
In such a dynamic environment, the peacekeeping, law enforcement, and 
traditional battlefield roles of deployed units may be present at 
different times within the same theater of operations. The use of riot 
control agents will be evaluated based on the particular unit or 
mission involved and the particular facts and circumstances of the 
mission at the requested time.
    I would like to conclude by highlighting the continuing validity of 
Executive Order 11850. Executive Order 11850, which has not been 
modified or rescinded since it was issued, remains in effect.
    Thank you again, Mr. Chairman, for your personal attention to this 
issue and I would be happy to respond to any questions you may have in 
closed session.

    Senator Ensign. Thank you.
    Do you have anything to add General Mannon?
    General Mannon. No, sir, just good morning. It's an honor 
to be here, and I look forward to answering your questions in 
closed session.
    Senator Ensign. I just have a couple of quick questions, 
and I think that you would be able to answer those in open 
session. Correct me if I'm wrong on that.
    But, basically, on riot control agents, you mentioned the 
training. Can you just give us an idea of how long it takes to 
train somebody in the use of riot control agents? How long does 
it take to train a soldier or marine in the use of riot control 
agents?
    Mr. Benkert. Mr. Chairman, I would prefer to answer this in 
closed session. General Mannon, I think, could amplify this in 
closed session, as well. Obviously, this will depend on the 
type of units, and I think, when we get into that, we're going 
to be getting into operationally sensitive material.
    Senator Ensign. Okay. As far as the report is concerned, I 
understand that you all feel that the report is very close to 
being completed. I was told that it, maybe, is just a few weeks 
away. Is that your understanding?
    Mr. Benkert. We hope that's true. The report is currently 
with the Secretary. You've requested a presidential report, so 
then it will also need White House review.
    Senator Ensign. The anticipation on the White House 
review--do you have any idea about how long that will take, as 
well?
    Mr. Benkert. Sir, I can't predict that. I expect a couple 
of weeks, but I can't predict how long it will take.
    Senator Ensign. But you're within a very short period of 
time of sending it over to the White House?
    Mr. Benkert. That's correct.
    Senator Ensign. Okay.
    I think that's all I have. I think we'll move now to closed 
session, unless you have anything else, Senator Akaka?
    Senator Akaka. No questions at this session.
    Senator Ensign. Okay. We are adjourned; we will now move to 
closed session.
    [Questions for the record with answers supplied follow:]

               Questions Submitted by Senator John Ensign

                         NONLETHAL TECHNOLOGIES

    1. Senator Ensign. Mr. Benkert and General Mannon, what nonlethal 
technologies in development are at a technology readiness level that 
they could be deployed in the area of responsibility within 6 months?
    Mr. Benkert. [Deleted.]
    General Mannon. [Deleted.]

                     URGENT NEEDS STATEMENTS SYSTEM

    2. Senator Ensign. Mr. Benkert and General Mannon, what 
capabilities have been identified by the warfighters through the Urgent 
Needs Statements System and have they been addressed by the acquisition 
community?
    Mr. Benkert. [Deleted.]
    General Mannon. [Deleted.]

                        RIOT CONTROL TECHNIQUES

    3. Senator Ensign. Mr. Benkert and General Mannon, what are the 
current techniques being utilized within the prison system in Iraq to 
quell riots and prevent injuries?
    Mr. Benkert. [Deleted.]
    General Mannon. [Deleted.]

    4. Senator Ensign. Mr. Benkert and General Mannon, what systems are 
in development that could assist those managing prisons with 
Multinational Corps-Iraq?
    Mr. Benkert. [Deleted.]
    General Mannon. [Deleted.]
                                 ______
                                 
             Questions Submitted by Senator Daniel K. Akaka

             PSYCHOLOGICAL IMPACT OF RIOT CONTROL AGENT USE

    5. Senator Akaka. Mr. Benkert and General Mannon, last year there 
were international accusations that the U.S. military had used chemical 
weapons in Fallujah. These incorrect accusations were based on the 
legal U.S. military use of white phosphorous in combat operations in 
Fallujah. If the U.S. military were to use riot control agents 
routinely in offensive operations in Iraq and Afghanistan, requiring 
them to wear gas masks and causing temporary incapacitation of 
civilians, could that cause a significant negative reaction among the 
local population or the international community? For example, could it 
make it harder to win the ``hearts and minds'' of the Iraqi population, 
or provide insurgents and jihadists with a powerful propaganda tool to 
portray the U.S. military as using poison or gas on innocent Iraqi 
civilians?
    Mr. Benkert and General Mannon. The U.S. military may use riot 
control agents consistent with Executive Order 11850 and the Chemical 
Weapons Convention. It is possible that accusations of U.S. violations 
of the Chemical Weapons Convention would be made if the U.S. military 
were to use riot control agents in circumstances that were not 
``defensive military modes'' under E.O. 11850.

              OPERATIONAL IMPACT OF RIOT CONTROL AGENT USE

    6. Senator Akaka. General Mannon, if U.S. military forces were to 
use riot control agents routinely in offensive operations in Iraq and 
Afghanistan, would it require our forces to carry and wear additional 
equipment that could hinder their mobility and operational flexibility? 
For example, would it require them to carry and wear gas masks during 
riot control agent operations, in addition to all the other equipment, 
weapons, body armor, and communications gear they carry into combat? If 
so, could carrying and wearing the gas mask (and any additional riot 
control agent equipment required) impede their operational mobility or 
ability to communicate effectively in tactical operations?
    General Mannon. [Deleted.]

           DESIRABILITY OF FOREIGN USE OF RIOT CONTROL AGENTS

    7. Senator Akaka. Mr. Benkert and General Mannon, from a military 
and a policy point of view, would we want hostile military forces to 
use riot control agents against our military forces? Would that be in 
our interest? Or would it be better if hostile military forces did not 
use riot control agents against our military?
    Mr. Benkert and General Mannon. We would not want hostile military 
forces to use riot control agents against our military forces. However, 
if this occurred, our Armed Forces are trained to operate in such an 
environment.

            RIOT CONTROL AGENT AUTHORITIES AND CAPABILITIES

    8. Senator Akaka. Mr. Benkert and General Mannon, with respect to 
riot control agents, do U.S. military forces have all the authority and 
capability necessary, consistent with U.S. policy, law, and treaty 
obligations?
    Mr. Benkert and General Mannon. Combatant commanders currently have 
all of the authorities they have asked for regarding the use of riot 
control agents consistent with the Chemical Weapons Convention and 
Executive Order 11850.

                     VIEWS OF COMBATANT COMMANDERS

    9. Senator Akaka. Mr. Benkert and General Mannon, as a general 
matter, did the combatant commanders express the view that there would 
be a high utility to the use of riot control agents in a manner that 
would not be consistent with U.S. policy?
    Mr. Benkert and General Mannon. [Deleted.]

                 ALTERNATIVES TO RIOT CONTROL AGENT USE

    10. Senator Akaka. General Mannon, section 1232(b)(2)(D) of the 
National Defense Authorization Act for Fiscal Year 2006 (Public Law 
109-163) requires a ``summary of the views held by combatant commanders 
of United States combatant commands as to the utility of the use of 
riot control agents by members of the Armed Forces when compared with 
alternatives.'' What alternatives were considered, and did they include 
other nonlethal weapon alternatives?
    General Mannon. [Deleted.]

    [Whereupon, at 10:24 a.m., the subcommittee adjourned.]

                                 
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