[Congressional Record Volume 140, Number 140 (Friday, September 30, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: September 30, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                             THE CWC REPORT

  Mr. DeCONCINI. Mr. President, the Senate Select Committee on 
Intelligence has just issued a report on U.S. Capability to Monitor 
Compliance with the Chemical Weapons Convention, an analysis of the 
monitoring and counterintelligence implications of this arms control 
agreement that has been submitted to the Senate for its advice and 
consent to ratification. The committee will send each member a printed 
copy of this report, and we would be happy to provide a typescript copy 
to anybody who would like to see the report before the Senate adjourns.
  This report fulfills a traditional function of the Intelligence 
Committee with regard to arms control agreements, to give both the 
Senate Foreign Relations Committee and the Senate as a whole our 
independent assessment of such issues as how well or poorly the United 
States will be able to monitor other countries' compliance with the 
convention, and whether the executive branch is prepared to protect 
classified information during foreign inspections of U.S. facilities. 
Because the CWC will also involve inspections of private facilities in 
the United States, our report also covers issues relating to the 
protection of confidential business information.
  The committee's unclassified report includes 14 recommendations, some 
of which relate to language in the resolution of ratification. The 
report, which the committee approved by a vote of 16 in favor and none 
opposed, also contains three additional views, by Senators John Glenn, 
John F. Kerry and Malcolm Wallop.
  There is a longer, highly classified version of this report, which is 
held in the committee's offices. We invite all interested Members of 
the Senate to read this more detailed report at their convenience.
  Mr. President, I ask unanimous consent that the committee's findings 
and recommendations, which are summarized in the final section of our 
report, be included in the Record.
  There being no objection, the report was ordered to be printed in the 
Record, as follows:

  Report of the Select Committee on Intelligence, U.S. Senate: Select 
  Committee on Intelligence, U.S. Senate: U.S. Capability To Monitor 
            Compliance With the Chemical Weapons Convention


                 Summary: Findings and Recommendations

       This summary largely repeats the findings and 
     recommendations contained in the body of the Committee's 
     report. The reader is encouraged to consult the full text to 
     understand the context of those findings and recommendations 
     and the reasons for them.


                      Implications of the CWC Text

       The Committee pursued several issues of treaty 
     interpretation in its hearing and in questions for the 
     record, and the answers provided by the Executive branch were 
     generally reassuring. The lack of a definition of ``law 
     enforcement purposes'' could lead, however, to compliance 
     disputes.
       If the CWC is ratified, a new Executive order will be 
     needed to minimize the risk of American use of riot control 
     agents in ways that would raise compliance questions.
       It is likely that some States Parties to the CWC will 
     assert that the Convention requires substantial changes in 
     the functioning of the Australia Group. The Committee trusts 
     that the United States and other Australia Group members will 
     prepare to counter such arguments both publicly and in 
     international fora.
       Recommendation #1.--The Senate should make its consent to 
     ratification of the CWC conditioned upon a binding obligation 
     upon the President that the United States be present at all 
     Amendment Conferences and cast its vote, either positive or 
     negative, on all proposed amendments made at such 
     conferences, thus ensuring the opportunity for the Senate to 
     consider any amendment approved by the Amendment Conference.


                      monitoring and verification

       A single, all-encompassing judgment cannot be made 
     regarding the verifiability of the CWC or U.S. capability to 
     monitor compliance with the Convention. In some areas our 
     confidence will be significantly higher than others. Like the 
     Executive branch, however, the Committee largely accepts the 
     Intelligence Community's pessimistic assessment of U.S. 
     capability to detect and identify a sophisticated and 
     determined violation of the Convention, especially on a 
     small scale. The Committee also notes the Intelligence 
     Community's assessment that the CWC would give the U.S. 
     Government access to useful information, relevant to 
     potential CW threats to the United States, that would not 
     otherwise be obtainable.
       It is likely that some countries that ratify the CWC will 
     seek to retain an offensive chemical weapons capability. 
     While it is unlikely that they would do so by diverting 
     declared CW stocks, the covert stockpiling of undeclared 
     agent or munitions could well occur. Monitoring such illicit 
     behavior will be the single most challenging task for the CWC 
     verification regime and U.S. monitoring.
       OPCW investigators, if not blocked from gaining needed 
     access to sites and affected persons, should be able to 
     determine whether chemical weapons have been used in a 
     particular case.
       Recommendation #2.--The Executive branch should work to 
     foster OPCW procedures that would permit on-site inspectors 
     to identify and record the presence of non-scheduled 
     chemicals, while taking extraordinary steps, if necessary, to 
     protect any confidential information thereby acquired.
       If the international inspectorate is determined, well 
     trained, and well equipped, and if U.S. or other States 
     Parties provide accurate and timely leads to the OPCW, there 
     may well be some occasions in which on-site inspection will 
     produce evidence of CWC violations. It will be vital, 
     however, that the OPCW not lose sight of that objective.
       In addition, U.S. and international monitoring will, at 
     times, be sufficient to raise well-founded questions. In 
     order to maintain the effectiveness of the Convention and to 
     deter potential violators, the United States and the OPCW 
     must pursue such questions vigorously, even to the point of 
     seeking international sanctions if a State Party does not 
     adhere to the principle set forth in paragraph 11 of Article 
     IX of the CWC, that ``the inspected State Party shall have 
     the right and the obligation to make every reasonable effort 
     to demonstrate its compliance with this Convention.'' U.S. 
     verification policy and investment in monitoring technologies 
     should start from the principle that monitoring can 
     contribute to effective international action even if it 
     cannot conclusively demonstrate a country's violation of the 
     Convention.
       Recommendation #3.--The Executive branch should adhere to 
     an arms control verification policy that does not require 
     agencies to prove a country's noncompliance before issues are 
     raised (either bilaterally or in such international fora as 
     the OPCW or the United Nations) and appropriate unilateral 
     actions are taken.
       The deterrent effect of the CWC is extremely difficult to 
     predict. A strong U.S. commitment to the enforcement of the 
     CWC will be essential to the effectiveness of the Convention. 
     It may in fact be possible to achieve a measure of both 
     enforcement and deterrence, but only if the United States is 
     prepared to make compliance with the CWC a major element of 
     its foreign policy stance toward each State Party to the 
     Convention.


               Improving U.S. Monitoring and Verification

       Recommendation #4.--The Committee endorses the call by the 
     interagency committee under the Deputy Secretary of Defense 
     for increased funding of CW sensor technology and urges the 
     Executive branch to redirect FY 1995 funds for this purpose 
     as well. The Committee also recommends that Congress rescind 
     its restriction on DOE efforts to develop CW (and BW) sensors 
     based upon technologies it is developing in the nuclear 
     field.
       Funds invested in CW sensor technology may well be wasted, 
     however, unless the Executive branch institutes effective 
     oversight of the multitude of agency programs in this field. 
     The recent formation of a Nonproliferation and Arms Control 
     Technology Working Group may provide an appropriate forum in 
     which to deconflict and narrow the focus of agency programs 
     and to fund the most promising avenues to ensure expeditious 
     completion. The Executive branch should ensure that the body 
     that makes such decisions is fully briefed on all relevant 
     intelligence and defense programs. Even highly sensitive 
     programs should not be immune from high-level interagency 
     consideration to determine whether they warrant increased or 
     lessened support.


                       Cooperation with the OPCW

       The lack of U.S. access to raw data from on-site 
     inspections will impede the Intelligence Community's 
     monitoring of CWC compliance.
       Progress is being made in The Hague on enabling the OPCW to 
     take advantage of the information resources of States 
     Parties; the Executive branch should give this matter high 
     priority.
       Recommendation #5.--Rather than waiting until the CWC 
     enters into force, the Executive branch should begin 
     preparing now to meet the likely need for U.S. support to 
     OPCW inspections, including information that would be needed 
     for challenge inspections of declared and undeclared sites 
     pursuant to Part X of the CWC Verification Annex.
       The Committee cannot assure the Senate that the Preparatory 
     Commission's other recommendations will improve CWC 
     verification significantly, but it is encouraged by the 
     reported general direction of those talks.


                   the question of russian compliance

       The Committee views with great concern Russia's failure to 
     comply fully with the data declaration provisions of the 
     Wyoming MOU and its implementing procedures. In the absence 
     of full compliance with the Wyoming MOU, neither the 
     Committee nor the Senate can overlook the distinct 
     possibility that Russia intends to violate the CWC.
       The failure to implement all the on-site inspections 
     originally agreed to in the Wyoming MOU is another cause for 
     serious concern. The inspections under Phase II of the MOU 
     are no longer likely to make a significant contribution to 
     compliance monitoring or verification. Rather, as pared down 
     in 1993 and in the final implementing procedures, they will 
     continue the confidence-building process and help the two 
     sides prepare for later inspections under the BDA and/or the 
     CWC. Given Russia's refusal to permit a full suite of 
     technical inspection equipment, even after most inspections 
     and all challenge inspections of non-declared sites were 
     eliminated, the Senate must assume that Russia may have 
     something to hide.
       Recommendation #6.--The President should make full Russian 
     implementation of the Wyoming MOU and the BDA an issue of 
     high priority in U.S.-Russian relations and raise the matter 
     personally at the highest levels. The Committee recommends 
     that the Senate add a condition to the resolution of 
     ratification of the CWC requiring the President, 10 days 
     after the CWC enters into force or 10 days after the Russian 
     Federation deposits instruments of ratification of the CWC, 
     whichever is later, either--
       (a) to certify to the Senate that Russia has complied fully 
     with the data declaration requirements of the Wyoming MOU; or
       (b) to submit to the Senate a report on apparent 
     discrepancies in Russia's Wyoming MOU data and the results of 
     any bilateral discussions regarding those discrepancies.
       The Committee further recommends that the Senate add a 
     declaration to the resolution of ratification of the CWC 
     expressing the sense of the Senate that if Russian data 
     discrepancies remain unresolved 180 days after the United 
     States receives information on Russia's initial CWC data 
     declarations from the OPCW Technical Secretariat, the United 
     States should request the Executive Council of the OPCW to 
     assist in clarifying those discrepancies pursuant to Article 
     IX of the Convention.
       Given the passage of one-and-a-half years since Russia and 
     the United States reached ad referendum agreement on BDA 
     implementation, and given the fact that the BDA mandates 
     extensive on-site inspection by U.S. personnel, the Committee 
     believes there is a real risk that the BDA will never enter 
     into force, notwithstanding Russia's economic incentive to 
     accept bilateral verification. In the absence of agreement on 
     BDA implementation, the Committee advises the Senate that 
     verification of Russian compliance would likely be based upon 
     a smaller number of inspections than originally anticipated, 
     that the inspections of Russian sites would be conducted by 
     the OPCW inspectorate rather than by U.S. personnel, and that 
     there would be no guaranteed U.S. access to the detailed 
     inspection data. On the other hand, the OPCW is unlikely to 
     exempt Russia from the requirements set forth in the CWC's 
     provisions.
       Recommendation #7.--The Senate should add a condition to 
     the resolution of ratification of the CWC, barring the 
     deposit of instruments of ratification until the President 
     certifies to Congress either: (a) that U.S.-Russian agreement 
     on BDA implementation has been or will shortly be achieved, 
     and that the agreed verification procedures will meet or 
     exceed those mandated by the CWC; or (b) that the OPCW will 
     be prepared, when the CWC enters into force, to effectively 
     monitor U.S. and Russian facilities, as well as those of the 
     other States Parties. Relevant committees may also wish to 
     consider whether it would be effective to attach conditions 
     to one or more elements of U.S. economic assistance to 
     Russia.
       Recommendation #8.--The Executive branch and the committees 
     of Congress with responsibility for U.S. contributions to the 
     OPCW budget should pay close attention to the OPCW's changing 
     needs, so that additional funds can be made available in a 
     timely fashion if current planning assumptions prove too 
     conservative.
       Recommendation #9.--The Executive branch should ensure that 
     the effectiveness of the CWC, both in Russia and around the 
     world, is the primary objective of U.S.-Russian CW policy.


           protecting classified and proprietary information

       Although some loss of sensitive information will likely 
     occur as a result of CWC data declarations and on-site 
     inspections, the Executive branch is taking all reasonable 
     steps to protect classified information that may be at risk. 
     The Committee welcomes the recent increase in efforts to help 
     U.S. industry, but believes that still more can be done to 
     protect confidential business information held by private 
     firms.
       Some loss of classified or proprietary information in 
     challenge inspections is likely, at least through perimeter 
     monitoring. It will be especially important, therefore, for 
     the OPCW to have effective regulations and procedures 
     guarding against disclosure of such information by OPCW 
     personnel.
       Recommendation #10.--The United States should exercise its 
     right to reject a proposed inspector or inspection assistant 
     when the facts indicate that this person is likely to seek 
     information to which the inspection team is not entitled or 
     to mishandle information that the team obtains.
       Recommendation #11.--Congress should amend the CWC 
     implementing legislation (S. 2221) to give the DoD On-Site 
     Inspection Agency (OSIA) authority to escort inspectors on 
     non-DoD sites, when asked to do so by the owners or managers 
     of those sites, on a non-reimbursable basis to the extent 
     that funds are available.
       Recommendation #12.--The Department of Commerce, with 
     assistance from the Department of Defense, should develop a 
     database similar to the Defense Treaty Inspection Readiness 
     Program (DTIRP) database, to which interested firms could 
     voluntarily contribute information on security needs at their 
     facilities in the event of a CWC inspection.
       Given industry's important role in data declarations, the 
     first of which must be submitted by the United States only 30 
     days after the CWC enters into force, the risk that industry 
     unpreparedness will lead to inaccurate U.S. declarations is a 
     cause for concern.
       Recommendation #13.--The Commerce Department should 
     undertake a substantially-increased outreach program to 
     inform companies that do not yet understand their data 
     declaration obligations, in particular. Because U.S. 
     ratification of the CWC may well precede enactment of 
     implementation legislation, the Commerce Department should 
     begin this effort now, rather than waiting for formal 
     designation as the lead agency for this effort.
       Recommendation #14.--The Senate Committee on Foreign 
     Relations should pay particular attention to whether section 
     302 of S. 2221 provides for sufficient disclosure of 
     information to Congress and, if necessary, to the public.

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