[Congressional Record Volume 143, Number 36 (Wednesday, March 19, 1997)]
[Senate]
[Pages S2541-S2550]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      CHEMICAL WEAPONS CONVENTION

  Mr. HELMS. Mr. President, the remarks I am about to make will 
probably be the best kept secret in Washington, DC, tomorrow morning in 
the Washington Post or whatever. Instead, I am sure there will be ample 
coverage given to the various statements made by several Senators 
earlier in the day about how they are having trouble getting a treaty 
through the U.S. Senate. And certain comments were made that just had 
no basis in fact whatsoever.
  So this is a speech that I am going to make to set the record 
straight so that it will be in the Congressional Record tomorrow 
morning in the hopes that some soul somewhere may decide to look to see 
what the facts really are.
  In any case, I listened with great interest to the--what do we call 
it--the colloquy this morning regarding the Chemical Weapons 
Convention, and I think it is important to remind the Senate of some 
facts about the debate surrounding this controversy and, I believe, 
this dangerous treaty, which is perilously flawed.
  First of all, I am puzzled at the insistence of some of my Democratic 
colleagues on a date certain for a vote on this treaty. It appears that 
the supporters of the treaty want only a date certain when it suits 
their needs, their desires. I remember last year, they wanted a date 
certain for hearings on this very same subject, the Chemical Weapons 
Convention Treaty. They wanted a date certain for committee action on 
the treaty; they insisted on it.
  The committee took action on the treaty. Then they wanted a date 
certain for floor debate and consideration of the treaty --this was 
last year--and we obliged them in every instance. But hours before the 
vote on the Chemical Weapons Convention, on their date certain, that 
was supposed to happen, it was announced by the majority leader the 
night before, but what happened? The White House called up and said, 
``Please withdraw the treaty.''
  Now, it was not this Senator from North Carolina or any other Senator 
who asked it be withdrawn. It was not Trent Lott, the majority leader. 
It was the Clinton administration who asked the Senate not to vote on 
the Chemical Weapons Convention. Do you know why? Because they didn't 
have enough votes to ratify the treaty. And why did they not have the 
votes to ratify the treaty? Because in their zeal to force this treaty 
down the throats of Senators, they refused flat out to address any of 
the serious concerns that I had and a growing number of other Senators 
had about this treaty.
  I remember thinking last year, and I am thinking now, about what Sam 
Ervin said so many times. He said, ``The United States had never lost a 
war or won a treaty.'' And you think about the treaties that we have 
gotten into, and Sam Ervin--I think he got that from Will Rogers--but 
wherever it came from, it is true, and particularly in a document such 
as the Chemical Weapons Convention.

  So the suggestion, whether stated or implied, that we are somehow 
holding this treaty hostage is not only fraudulent, it is simply 
untrue. You will not

[[Page S2542]]

read about that in the Washington Post in the morning and CBS will not 
have it. They might say something about Jesse Helms holding up 
consideration of this treaty. But the fact is that I met for 4 hours 
yesterday evening with the distinguished Senator, Joe Biden, and we 
went down a list of many issues in that proposed treaty. And we 
resolved most of them.
  Let me talk a little bit about the suggestion that the committee, the 
Foreign Relations Committee, of which I am chairman, is failing to 
fulfill its responsibilities to address the Clinton administration 
priorities. That simply is not so.
  The Foreign Relations Committee was the first to convene a 
confirmation hearing for a Cabinet-rank official this year. In fact, 
the Foreign Relations Committee expeditiously considered and reported 
both of the President's Cabinet-rank nominations by the end of January. 
Indeed, we have cleared the calendar of nearly all of the 
administration's appointees, including one Assistant Secretary of State 
and several Ambassadors.
  Let us set the record straight with respect to negotiations 
concerning the Chemical Weapons Convention.
  I personally met with the National Security Adviser in my office on 
February 5 of this year. In that meeting, I told him that my staff was 
prepared to begin discussions with his staff immediately. Well, day 
after day after day passed, and I received not one syllable of reply 
whatsoever to that offer.
  In an effort to get around the impasse, I wrote a seven-page letter 
to Mr. Berger, dated February 13, reiterating my request to begin 
staff-level negotiations and proposing concrete solutions for 
addressing the concerns that I and other Senators have about this 
treaty.
  Another 2 weeks elapsed before I finally received a response from Mr. 
Berger--four paragraphs long--in which he did not respond to one single 
proposal contained in my letter. Indeed, he reiterated his refusal to 
send any of his staff to meet directly with the staff of the Foreign 
Relations Committee.
  Then, on February 27, the chief of staff of the Foreign Relations 
Committee, Adm. Bud Nance--who, by the way, is recovering nicely from a 
near-fatal automobile accident that occurred last December, just before 
Christmas--came from his home in McLean to the Senate for the sole 
purpose of attempting to bridge this impasse. On that day, Admiral 
Nance met with the heads of legislative affairs of both the State 
Department and the NSC.
  Well, then, we move forward to March 5. Mr. Berger finally allowed 
the NSC staff to begin discussion with the staffs of interested 
Senators. So those Senators who are counting every day from now until 
April 29 should ask Mr. Berger why he dillied and dallied away the 
month of February and refused to work with the chairman of the Foreign 
Relations Committee or the committee staff.
  Notwithstanding all of that, since March 5, the staff of the Foreign 
Relations Committee has participated in more than 50 hours of 
negotiations with the administration and other proponents of this 
treaty. And I must add that the distinguished majority leader, to his 
credit, has already devoted an extraordinary amount of time and energy 
to this issue.
  Last night, the distinguished ranking member of the Foreign Relations 
Committee and I, as I said earlier, spent 4 hours in my office 
negotiating specific provisions with some success. So, in light of all 
those efforts, I am perplexed as to how anyone could conclude that we 
are not working in good faith to resolve this matter.
  Having said that, I think the time has come for the administration to 
address several key concerns. Thus far, I regret to report we have not 
had as much success as I would have hoped. Indeed, it is becoming clear 
that the administration is treating these negotiations as an empty 
exercise, a perfunctory hurdle over which they must jump so that they 
can argue that they ``tried to negotiate'' with me and with the Foreign 
Relations Committee.

  As a result of this unfortunate attitude on the part of the White 
House, very little progress is being made to bridge the wide gap 
between us on a number of important provisions of the chemical weapons 
treaty.
  Our staffs have been able to reach definitive agreement with the 
administration on only 8 of 30 provisions. Of those, three are simple 
reporting requirements and one is a nonbinding sense-of-the-Senate 
declaration. Not one of the issues that can be regarded as critical has 
yet been resolved.
  But, Mr. President, having said all that, I am still determined to 
work with the administration and others to see if we can resolve our 
differences on a chemical weapons treaty. But if we are going to do 
that, the administration needs to return to the bargaining table and 
negotiate with my staff and with me in good faith. The way they have 
been acting, they said, ``Well, we'll work it out.'' ``I'll do what I 
think is right,'' they say. ``And you do what we think is right.'' So 
that does not make it a 50-50 proposition, which I am not going to 
accept.
  The administration needs to realize, in no uncertain terms, that 
unless and until they satisfy the number of concerns that various 
Senators, including this Senator, have relating to the treaty's 
universality, verifiability, constitutionality, and crushing impact on 
business, I am not going, personally, to move on the CWC, period.
  The chemical weapons treaty, as it now stands, is not global, as it 
is claimed to be. It is not verifiable. And it imposes costly and 
potentially unconstitutional regulatory burdens on American business.
  This treaty will do nothing--will do nothing--to reduce the dangers 
of poison gas.
  Almost none of the rogue nations that pose a chemical weapons threat 
to us--such as Iraq, Syria, Libya, North Korea--are signatories to the 
treaty. They are free to pursue their chemical weapons programs 
unimpeded by this treaty. And the intelligence community has made 
clear--I do know whether it has been reported in the news or not--but 
the intelligence community says it is not possible to monitor the 
compliance of signatory nations with a high level of confidence. This 
is a matter of record. This is a matter of testimony before the Senate.
  By the way, Russia is already violating its existing bilateral 
chemical weapons treaty with the United States. And the Russian 
military is reportedly working to circumvent the CWC with a new 
generation of chemical agents that are specifically crafted to evade 
the treaty's verification regime.
  So if the chemical weapons treaty will not do anything to reduce the 
dangers of chemical weapons, what will it do? Good question.

  Well, for one thing, it will, in fact, increase access to dangerous 
chemical agents to those terrorist states that do sign the treaty. Now, 
Douglas Feith, a chemical arms control negotiator in the Reagan 
administration, pointed out last week in the New Republic that the CWC 
will give the terrorist regimes in Iran and Cuba the right to demand 
access to the chemical markets of the United States and all other 
signatory nations and will create a treaty obligation for signatory 
nations to sell or give them chemical defensive gear, which is 
essential for any offensive program.
  Well, the treaty will also endanger American troops by its forbidding 
commanders in the field from using tear gas and other ground control 
agents.
  Worst of all, on top of all of these other deficiencies, it will 
impose dozens of new regulations and unprecedented and unconstitutional 
inspections on between 3,000 to 8,000 American businesses. Under the 
chemical weapons treaty, foreign inspectors will be authorized to swoop 
down on American businesses--without a criminal search warrant or even 
probable cause--and they can rifle through the records of these 
businesses, interrogate the employees, and even remove chemical 
samples. That is not only an infringement on the constitutional rights 
of Americans, it is an invitation to industrial espionage. Any treaty 
that gives foreign inspectors greater powers of search and seizure than 
those granted American law enforcement officials under the U.S. 
Constitution is a treaty in need of serious modifications.
  Last, this treaty has already begun to lull the United States and our 
allies into a false sense of security by creating the false impression 
that something is being done about the problem of chemical weapons 
when, in fact,

[[Page S2543]]

nothing, nothing is being done by the treaty. I could come up with no 
other explanation for why the then-Vice Chairman of the Joint Chiefs of 
Staff, Admiral Owens, would try to strip more than $800 million in 
chemical defensive funding from the fiscal years defense plan, or why 
the Chairman of the Joint Chiefs of Staff, General Shalikashvilli, 
would recommend that $1.5 billion be taken out of our defense spending.
  Do not take my word for it. Listen to constitutional scholars such as 
Robert Bork, Ed Meese. Listen to foreign policy experts such as Jeanne 
Kirkpatrick, and Alexander Haig, and former Secretaries of Defense Dick 
Cheney, Caspar Weinberger, Donald Rumsfeld, and James Schlesinger, or 
ask Henry Kissinger about it. Defense Secretaries of every Republican 
administration since Nixon have come out against this treaty, along 
with literally dozens of generals, admirals and senior officials from 
the Reagan, Bush, Nixon, Ford, and even the Carter administrations. If 
the Clinton administration chooses not to address the concerns that 
these distinguished experts and a number of Senators have enumerated, 
that is their decision, but they will not get the CWC unless they sit 
down and talk about the problems that some of us have.
  Now, we have already sat down. We have begged to sit down before. We 
have scheduled. We have written letters, all to no avail.
  One other myth about the treaty, the myth of this April 29 deadline. 
We hear over and over again, ``If we miss this deadline, it will be 
terrible.'' Now, let me say, Mr. President, there has to be an end to 
the administration's Chicken Little pretense that the sky is going to 
fall if an agreement is not reached by April 29. This artificial 
deadline is a fraud created by the administration when they gave the 
Hungarian Government the green light to drop its instrument of 
ratification. The Hungarians had sought U.S. guidance on how to 
proceed, and the administration expressly told the Hungarians to go 
right ahead.
  The administration has one purpose, and that was to manufacture, to 
contrive, to pretend, to have a drop-dead date to blackmail the Senate 
into rubberstamping this dangerously defective treaty. Now, I for one 
am not going to be blackmailed into permitting a flawed treaty to be 
approved by such tactics. Further, the administration is disingenuous 
in arguing that the United States will be ``shut out'' of the Executive 
Council that implements this chemical weapons treaty, and that the U.S. 
personnel will be barred from the inspection regime if the United 
States does not ratify by April 29. Horse feathers.

  As former Defense Secretaries James Schlesinger, Caspar Weinberger, 
and Donald Rumsfeld noted recently in an Op-ed in the Washington Post, 
``In the event that the United States does decide to become a party to 
the CWC at a later date--perhaps after improvements are made to enhance 
the treaty's effectiveness--it is hard to believe its preferences 
regarding implementing arrangements would not be given considerable 
weight. This is particularly true,'' this is what they wrote in the op-
ed piece, ``This is particularly true since the United States would 
then be asked to bear 25 percent of the total cost of the implementing 
organization's budget.''
  Now, Mr. President, it will be a concession of diplomatic 
incompetence to try to argue that the U.S. Government is incapable of 
negotiating a seat on the Executive Council and the U.S. participation 
in the inspection regime of a treaty for which the American taxpayers 
are footing 25 percent of the bill. In fact, U.S. inspectors will be 
hired if and when the Congress agrees to fork over millions upon 
millions of American taxpayers' dollars to finance this new 
organization.
  As for the effects on industry, Secretaries Schlesinger, Weinberger, 
and Rumsfeld made very clear there will be very few, if any. ``The 
preponderance of trade in chemicals would be unaffected by the CWC's 
limitations, making the impact of staying out of the treaty regime, if 
any, fairly modest on American manufacturers.''
  It turns out that the Chemical Manufacturers Association has 
acknowledged that it will not lose, as it had previously claimed, $600 
million in export sales. The Chemical Manufacturers Association now 
admits that less than one-half of 1 percent of U.S. chemical exports 
will be affected by this treaty, and even that number, even that number 
is highly suspect.
  Mr. President, it is time that the contrived myth of cataclysmic 
consequences of April 29 be put to rest once and for all. More 
important than any artificial deadline is the need to resolve the 
substantive issues that divide us. Without significant changes 
governing U.S. participation, agreed to in a resolution of 
ratification, there is no point in ratifying the CWC. In that case, 
what happens, if anything, after April 29, is academic.
  On the other hand, if the administration does come to agreement with 
us on these and other matters after April 29, or even before, I am 
confident that the distinguished Secretary of State Madeleine Albright 
can and will ensure the United States' interests are 
protected. Madeleine Albright is a tough lady and a capable negotiator.

  Mr. President, if the administration really wants this treaty by the 
artificial deadline that they deliberately created, they will have to 
return to the negotiating table and begin working in good faith with 
the staff of the Foreign Relations Committee and with me. Let me 
reiterate that I spent 4 hours last evening with the distinguished 
Senator from Delaware, [Mr. Biden]. He operated in good faith and so 
did I. That is what it is going to take. But there is going to have to 
be a lot of action going a long way in our direction on a number of 
substantive issues.
  For the information of anybody who may be interested, I remain of the 
opinion, as I indicated in my January 29 letter of this year to the 
majority leader, that once we have succeeded in having comprehensive 
reform of U.S. foreign affairs agencies, reform of the United Nations, 
and once the modification of the ABM and CFE treaties are submitted to 
the Senate for advice and consent, I will be more than willing to turn 
my attention to the matter of the CWC. I might be persuaded to turn to 
it earlier than that. Even so, any resolution of ratification for the 
CWC must provide key protections relating to the treaty's verification, 
lack of applicability to rogue states, constitutionality, and its 
impact on business.
  Now, I am very sincere when I say that I hope we can work out our 
differences. I am certainly willing to try. I hope I demonstrated that 
last evening and on occasions earlier than that. But, in the end, 
whether or not we reach agreement is a decision that only the Clinton 
administration can make. I think they ought to get about it and let us 
see what we can work out together on a fair and just basis.
  I yield the floor.
  Mr. BIDEN. Mr. President, again, I did not anticipate that I would be 
speaking to this issue. Fortunately, or unfortunately, I am on the 
floor, and I understand why the Senator from North Carolina came over 
to speak in light of things that were said earlier today when he was 
not here and I was not here. I would like to respond, at least in part, 
to what my distinguished colleague has said.
  Let me begin by parcelling this out into three pieces. First, is the 
issue of whether or not the administration has acted in good faith; 
second, is not whether or not the substantive issues raised by the 
distinguished Senator from North Carolina are accurate, but whether or 
not there is a response to them; I think his concerns are not accurate; 
and third, whether or not the ultimate condition being laid down by the 
Senator from North Carolina, as I understand it--and I could be wrong--
is appropriate.
  Let me begin, first, by talking about the administration. It is true 
that the distinguished Senator from North Carolina and I spent almost 
4\1/2\ hours last night addressing, in very specific detail--apparently 
without sufficient success--the concerns the Senator from North 
Carolina has about this treaty. I note--and I will come back to this--
that the universe of concerns expressed by the Senator from North 
Carolina were submitted to me in writing some time ago. Although they 
have expanded slightly, they total 30, possibly 31, concerns.
  When I became the ranking member of this committee, I approached the 
distinguished chairman and said I would very much like to work with

[[Page S2544]]

him, I would very much like to cooperate, and I would very much like to 
work out a forum in which we could settle our differences relating to 
what is sound foreign policy.
  The agreement made by the Senator from North Carolina with regard to 
the Senator from Delaware was this: I said I am willing to meet with 
your staff--you need not be there, Mr. Chairman--and discuss in detail 
every single concern you have. I am even willing to go out to Admiral 
Nance's home, because he was seriously injured. I am willing to go to 
his home and conduct these discussions. And to the credit of the 
chairman, he dispatched his staff to do that with me, my staff 
included, and I do not know, I will submit for the Record, the total 
number of hours we did this. But I know that I, personally, in addition 
to meeting with the Senator from North Carolina, have met with the 
staff for hours and hours. And our staffs have met for a considerably 
longer period of time--not in a generic discussion of this treaty, but 
on specific word-by-word analyses, negotiations, and agreement on the 
detail of proposals made by the distinguished Senator from North 
Carolina about how he feels the treaty has to be remedied.

  So what has the administration been doing? I think, to use an 
expression my grandmom used to use, ``Sometimes there is something 
missed between the cup and the lip.'' The administration--as I tried to 
explain to my friend from North Carolina last night, and his staff on 
other occasions--was giving conflicting marching orders. The 
administration, after direct discussions with Majority Leader Lott 
prior to January 29, agreed to meet and discuss this in detail with a 
task force that Senator Lott named. Senator Lott named a task force of 
interested Republicans.
  They included the distinguished chairman of the Foreign Relations 
Committee; the distinguished senior Senator from Alaska, Senator 
Stevens; Senator Smith of New Hampshire; Senator Kyl of Arizona; 
Senator Warner of Virginia, and others, who were to sit down and 
discuss with the administration their concerns about this treaty and 
how they felt the treaty had to be changed. The first meeting of that 
task force, of which Senator Helms was a part, appointed by Senator 
Lott, occurred on January 29.
  Now, my friend from North Carolina--I can understand why there may be 
confusion here. He said that Sandy Berger, the National Security 
Adviser, dallied away the month of February. He was dallying with 
Senator Lott; he was dallying with Senator Warner; he was dallying with 
Senator Shelby; he was dallying with Senator Bob Smith; he was dallying 
with Senator Kyl; he was dallying with a task force appointed by the 
Republican leader.
  I can understand why the distinguished Senator from North Carolina, 
the chairman of the Foreign Relations Committee, might not feel that is 
an appropriate forum. I can understand that. Those of us who have been 
chairmen do not like the fact that a majority leader will sometimes 
come along and say, ``By the way, even though this is within your 
jurisdiction, we are going to appoint a task force beyond your 
jurisdiction.''
  But the truth of the matter is, picture the quandary of the President 
of the United States after a discussion with the majority leader of the 
U.S. Senate, and the majority leader said, ``Here are the folks you are 
supposed to deal with.'' I challenge anyone on Senator Lott's staff who 
are the main players in this to suggest that the administration didn't 
deal in good faith with them. There were hours and hours and hours of 
detailed negotiations with this group.
  I say to my friend from North Carolina, put the shoe on the other 
foot. He is the President of the United States. Here is a Democratic 
majority leader. He wants a treaty passed. The Democratic majority 
leader goes to him and says, ``I have appointed a committee of 
Democrats interested in this subject. I would like you to negotiate 
with them, not with Biden, the chairman of the committee. He is part of 
this group.''
  So, beginning on January 29, Sandy Berger, Bob Bell, his chief 
negotiator, and the administration met for scores of hours. I don't 
mean 2. I don't mean 10. I don't mean 20. I mean 30 or 40 hours worth 
of negotiations with the principals, with the Republican Senators, as 
well as without them. Guess what. They reached an agreement. There is a 
universe of 30-some amendments. I hold it up now. This is what was 
presented to the administration by this coalition of Republican 
Senators concerned about the treaty. It, in fact, lists every known 
objection, every objection raised by any Republican that we are aware 
of or that the administration is aware of about the treaty. The number 
is 30.
  This document I have here listing those 30 concerns--not only 
concerns, 30 specific conditions--which the Republican task force, 
staffed by Senator Lott's staff and all other members' staff, listed. 
And they are listed. The specific proposals are listed that were made 
by the Republican task force.
  No. 1, enhancement to robust chemical and biological defenses. And 
they propose then two pages of language, three pages that relate to the 
conditions they would like attached to the treaty. That was repeated 30 
times as is appropriate. The administration spent 30 or more hours 
sitting with these members and/or their staff and coming to an 
agreement on 17 of them, disagreeing on 13.
  So, simultaneously, later Senator Helms and I began a process that 
was tracking the same process. I was not part of the Republican group, 
obviously, and I did not represent the administration in this group. 
But the administration sat down and in detail responded to every single 
concern raised by the Republican task force named by the majority 
leader, and instructed by the majority leader to deal with that group. 
Simultaneously, I sat for hours and hours with Senator Helms' staff, 
and then last night, at the end of the process, with Senator Helms 
himself for 4 hours. I will estimate that I sat with the staff and my 
staff sat with Helms' staff 20 hours or more.
  Again, Senator Helms was very straightforward with us. He gave us a 
document listing his 30 concerns, some of which were the same and some 
of which were different. This is the document presented to me. Over a 
period of hours and hours and hours of negotiation, I agreed on 21 of 
the 30 issues raised by Senator Helms, disagreed on 9, 3 of which I 
indicated I would not take opposition to but I didn't support.
  So with all due respect to my distinguished chairman, he may not have 
been aware and his staff may not have informed him of the hours and 
hours and hours and hours of detailed negotiation between the Lott task 
force, including his staff and the administration. But had he been 
informed, he would know that those negotiations began at the 
instruction of Senator Lott on the 29th of January.
  So I am sure when the Senator reads this in the Record or is informed 
by his staff, he will realize that the fact he didn't meet with Sandy 
Berger until February 15 should not be a surprise. Sandy Berger thought 
he was meeting with Senator Helms when he met with Senator Lott's task 
force.
  Let me tell you what was the agreed objective of the task force and 
of my negotiations. It was this, that we would put all of the universe 
of objections--and I hope those who follow this in the press, watching 
this now or reading it later, will understand precisely what I am about 
to say. The objective was--I think the Presiding Officer, who has been 
involved in and interested in this issue, may be aware of this as well. 
It was agreed that the Republican objections--legitimate--would be put 
in writing, which they did. All of them would be laid down, which they 
were. They said they totaled 30. They would be talked about, fought 
over, negotiated, to see if there could be a compromise reached, and, 
at the end of the day, there would be two lists. Every one of those 30 
amendments would fall in either column A, where there was agreement 
between the Lott task force and the administration, and hopefully Biden 
and Helms. Those things which could not be agreed to in column B. They 
got this picture.
  Thirty written conditions seeking to alter the interpretation of the 
treaty, or defend the intent of the treaty, put on paper, negotiated 
between the administration and the Lott group, and at the end of the 
day, they would be, to use the jargon of the Senate, ``fenced.'' That 
would be the universe of concerns, because, obviously, you can't 
address a concern unless you know what it is. They are the universe of 
concerns

[[Page S2545]]

raised about the treaty. And there would be either conditions 1 through 
30 placed in column A, where there is agreement to alter the treaty, or 
to add a condition to the treaty, I should say to be precise, or column 
B, where there is no agreement.
  Then what was envisioned was at the end of that process, within time, 
sufficient time to consider this in this Chamber, there would be the 
following process. The treaty would be brought up from the desk, 
stripped of any conditions that were reported out of the Foreign 
Relations Committee last time--this was the hope--and we would have the 
following procedure. Senator Helms and Senator Biden, as envisioned by 
the Lott group, would offer on behalf of the Lott group, Democrats and 
Republicans and the administration, a package in column A.
  That package with the administration would number 17, and if I were 
willing to add to that package with Senator Helms over the objection of 
the administration, that could be brought up to 21 out of the 30 
concerns that everyone agreed on or 17 of the 21 the administration 
agreed on and Biden would support Helms on 4 additional ones whether 
the administration liked it or not, leaving maximum 13, minimum 9, 
conditions that could not be agreed upon.
  That was done. They are the numbers that we were left with. Then it 
was envisioned that after passing the agreed-to conditions, we would 
then move to the conditions upon which we did not agree, and the 
Republicans under the leadership of Senator Helms would offer those 
conditions as we do on other treaties. I would be given the right to 
offer an alternative or to amend them, and we would vote ad seriatim. 
Then at the end of the day, after having disposed of all 30 of the 
concerns, we would then vote up or down on the treaty.
  Now, I call that a negotiation. I have been here for 24 years. I have 
been involved in a lot of serious negotiations. I have never been 
involved in negotiations where more people who were appointed to 
participate have acted in good faith. Think about this now. Name me a 
circumstance where a treaty has been presented by a Democrat or 
Republican President where there have been 19 conditions agreed to on 
that treaty, or 21 conditions in my case, 17 in the case of the 
administration, and then we vote on another either 13 or 9 additional 
changes.
  What I think my friend is saying--maybe he does not mean to say it--
what I read him to say is, unless you agree with us on the other nine, 
we are not going to let you vote.
  Now, look, I doubt whether my friend from North Carolina would find 
it appropriate if the American textile workers sat down with Burlington 
Mills or any other textile owner and said, we are going to negotiate a 
new collective bargaining agreement and we are going to go on strike 
unless you agree on every one of our conditions.
  How is that a negotiation? That is an ultimatum. That is not a 
negotiation. So I hope he does not mean it.
  I cannot believe, I do not believe Senator Helms means that if the 
administration does not come up now and separately negotiate with him 
after having settled the negotiation with the group called the Lott 
group, unless the administration agrees to Senator Helms' version of 
universality, Senator Helms' version of verifiability, and Senator 
Helms' version of constitutional requirements, et cetera, he will not 
let the treaty be voted on, because when you cut through everything, 
that is what it sounded like.
  I said at the outset I divided this into three pieces. One, whether 
or not there was negotiation by the administration in good faith. I 
will just let the record stand. And I repeat again, Senator Lott--and I 
do not know the exact circumstances under which it came about, but I 
assume it was after discussion with the President of the United States 
of America, President Clinton--set up a task force that included 
Senator Stevens, Senator Helms, Senator Kyl, Senator Warner, Senator 
Shelby, Senator Nickles, Senator Bob Smith, and Senator McCain. The 
President of the United States was told by the distinguished majority 
leader, Senator Lott, these are the people I want you to sit down with 
and try to work out their concerns.
  That first meeting took place on January 29. I began my meetings with 
Senator Helms on February 11. Again Senator Helms and his staff were 
part of the Lott task force.
  So although I understand that Senator Helms might not have liked that 
arrangement, I ask him to consider the dilemma that the administration 
was placed in when being told by the majority leader: negotiate with 
this group. I assure you, I promise you, I commit to you, to every 
Member of the Senate in my discussions with the President, with the 
Secretary of State and with the National Security Adviser, they all 
believed they were negotiating with the appropriate parties in the 
Senate because that is what the majority leader told them to do.

  The second point. They conducted a negotiation which culminated in an 
agreement that ended last Thursday when Bob Bell, representing the 
administration, sat down with the principals as well as all the 
staffers of those eight Senators, including Senator Lott's staff, and 
produced the document I have in my hand listing all 30 conditions 
raised by the Republican task force, including Chairman Helms, and 
placing every condition either in column A or column B--column A 
meaning those conditions where they have been worked out and agreed to, 
where the Lott task force, representing the Republicans in the Senate, 
and the administration reached an agreement on a condition they could 
both accept; and column B, where they could not accept, they could not 
reach an agreement.
  That was the product of hours and hours and hours and hours of 
detailed negotiation. I say to the Presiding Officer and anyone who is 
listening to this, I am not talking about general agreement. I am 
talking word-by-word specific agreement on every comma, whether it 
should say ``shall'' or ``should,'' every single word of their 
conditions, the majority of which were agreed to, compromise was 
reached on; the minority of which there was no compromise.
  I then was informed by the administration in the person of Bob Bell 
and Sandy Berger that to their surprise either Senator Helms' staff or 
someone purporting to represent Senator Helms at last Thursday's 
meeting, which was supposed to tie this in a knot, define the universe 
of conditions, place them all in one of two categories, and get about 
the business of proceeding on the treaty, at the last minute--literally 
the last minute--as I understand it. I mean, the meeting was over--the 
administration walked in the meeting, as I understand the Lott group 
thought they were walking in the meeting, to tie this knot, everything 
in column A or column B. Someone suggested that the chairman of the 
full committee did not find that appropriate. So I met with the 
Democratic leader and the administration. I went in the leader's 
office. I said I believe Senator Helms is still operating in good 
faith, as I believe he still is. I don't want to confuse this 
negotiation, but why don't you authorize me, Democratic leader, to 
speak for the Democrats? Why don't you let me go sit down with Senator 
Helms and try to get to the bottom of what appears to be a 
misunderstanding here? Because the understanding by the Lott group and 
the administration was that this was supposed to be all tied up with a 
unanimous-consent agreement last Thursday.

  So I sought a meeting with Senator Helms and he graciously agreed. 
And I kept him very late. He had a very busy day. I sat with him in his 
office last night until 8:30. The meeting began around 4 o'clock in the 
afternoon, without any break, without any interruption. I took out a 
document that his staff had prepared. It is dated March 13, ``To the 
Honorable Trent Lott, majority leader, from Jesse Helms, Chairman of 
the Foreign Relations Committee, subject: Status of negotiation over 
key concerns relating to the CWC.''
  And then Senator Helms, in that memo to Senator Lott, listed--and 
they are numbered--listed 30, ``concerns relating to CWC.'' Each of 
those concerns had, and it was very helpful the way it was organized, 
listed, No. 1 through 30, and then at the top of each of the numbers it 
said, ``status,'' status relative to the administration: No agreement 
with the administration or agreement with the administration.
  So I sat down with Senator Helms, because I am very jealous of the 
prerogatives of the Senate versus any administration, and feel very 
strongly

[[Page S2546]]

about the role of the Senate in treaties. I sat down with Senator Helms 
with the understanding and knowledge on the part of the administration, 
who knew I might not agree with them on everything, and my Democratic 
leader, and for 4\1/2\ hours went through all 30 issues, point by 
point. I reached agreement with Senator Helms, not on eight or 13 or 
17, depending on whose number you take as to whether the Lott group and 
the administration agreed. The administration thinks they agreed on 17. 
Senator Helms said they only agreed on eight. I don't want to get into 
that fight. But I can tell you what I did. I agreed on 21 of the 30. I 
disagreed with the administration on several points Senator Helms 
raised because I think he was right. They relate to the prerogatives of 
the Senate.
  Let me give an example. Under the Constitution, the U.S. Senate has a 
right to reserve on any treaty. We wanted to restate that right. The 
administration didn't want that right restated in the treaty as a 
condition. I agreed with Senator Helms, it should be restated; 
notwithstanding the fact we are not reserving on this treaty, we had a 
right to reserve if we wanted to. That is called preserving the 
prerogatives of the Senate delegated to the Senate in the Constitution 
of the United States of America. That is an example of one of the areas 
where the administration was unwilling to agree with Senator Helms and 
I was willing to agree.
  So at the end of the day we agreed to 21 items, and I was willing to 
make the case to my Democratic leadership, to put into column A. So 
that we would have one vote on 21 conditions to the treaty when it was 
brought up, leaving only 9 areas where we disagree. Of those nine, we 
were perilously close to agreement on several. I call that, in the 
universe of negotiations, good-faith negotiations.
  But, if by negotiating one means that the President or those who 
support the treaty, like Senator Lugar, a Republican, or Senator Biden 
a Democrat, have to agree to a condition that would kill the treaty, 
then that is not a negotiation. That is an ultimatum. Now, I am 
confident the Senator from North Carolina cannot mean that, and I am 
hopeful that we will continue to talk about the nine that remain 
unresolved. But at the end of the day, with all due respect, the Senate 
has a right to work its will.
  I am a professor of constitutional law at Widener University law 
school. I have taught, now, for a half a dozen semesters, a seminar to 
advanced students in constitutional law on separation of powers. One of 
the things I expressly teach is the treaty power in the Constitution. 
That is, for lack of a better shorthand, those powers separated between 
the executive, the legislative, and judiciary. And among those things, 
in terms of that horizontal separation, there are areas that have been 
in dispute for the last 200 years. One of them is appointment powers, 
second is treaty powers, and the other is war powers.

  Then there is the so-called vertical question of the separation of 
powers: State government versus Federal Government; individuals versus 
State or Federal Government. On the issue of the treaty power, I would 
observe what I observed earlier about the appointment power. Nowhere in 
the Constitution does it say that the Judiciary Committee shall decide 
who should or should not be a judge. It says, the Senate. Nowhere in 
the Constitution does it mention the Foreign Relations Committee. It 
mentions the Senate. So, I do think it is inappropriate, from a 
constitutional perspective, to deny the Senate, if that were anyone's 
intention, and I am not convinced it is yet, the right to vote ``yea'' 
or ``nay'' on ratifying a treaty or any conditions thereto.
  So now let me leave the item I mentioned I would speak to first, 
whether or not there were good-faith negotiations on the part of the 
administration. I hope I have amply demonstrated that there were. They 
thought they were supposed to deal with the task force the majority 
leader of the Senate said deal with, and they did it in good faith. I 
would be very surprised if any member of that group--I have not spoken 
to any of them because I am not part of that group, from Senator Warner 
to Senator Stevens to Senator McCain to Senator Kyl--would come to the 
floor and say the administration did not negotiate in good faith to us, 
tirelessly, hour after hour after hour.
  (Mr. SESSIONS assumed the chair.)
  Mr. BIDEN. Mr. President, let me move to the next point that relates 
to the merits of this treaty. That is a legitimate area of 
disagreement. I will be brief because I am keeping the staff and the 
pages, who have to go to school tomorrow morning, very late.


                              universality

  Critics charge that the CWC will be ineffective because rogue states 
such as Syria, Iraq, North Korea, and Libya--all of whom are suspected 
of or confirmed to have chemical weapons--have not joined the 
convention.
  Therefore, the argument goes, the United States should withhold its 
ratification until these states join.
  I could not disagree more.
  Just think of it. The logic of this argument would lead us to a world 
where rogue actors--not good international citizens--determine the 
rules of international conduct.
  Such a policy would amount, effectively, to a surrender of U.S. 
national sovereignty to the actions of a few.
  Instead of the United States actively leading international 
coalitions and setting tough standards on nonproliferation matters, the 
convention opponents would have us do nothing until every two-bit rogue 
regime would decide for us when we should act.
  This reasoning is contrary to the record of the past 40 years, during 
which the United States has led the way in nonproliferation 
initiatives.
  From the nuclear nonproliferation treaty, to the missile technology 
control regime, to the comprehensive test ban treaty, and to the 
chemical weapons convention itself, we have fought for establishing 
accepted norms of behavior.
  I happen to believe that international norms count.
  In a recent article that I coauthored with my distinguished 
colleague, Senator Richard Lugar, we noted that such norms provide 
standards of acceptable behavior against which the actions of states 
can be judged. They also provide a basis for action--harsh action--when 
rogue states violate the norm.
  Suggesting that we should now take a back seat to the likes of North 
Korea and Libya does a grave injustice to our record of international 
leadership and leaves such nations free to act as free operators 
without fear of penalty or retaliation by the nations whose armies and 
citizens they threaten.
  The fact that there is now no international legal prohibition against 
the development of chemical weapons should not be lost here.
  The suspected programs that treaty opponents are so concerned about 
are right now entirely legitimate according to international law, and 
we have already had a telling example of what can result from this 
perverse situation.
  The Japanese police were aware, before a cult attacked the Tokyo 
subway with sarin nerve gas in 1995, that the cult was manufacturing 
the gas--but they had no basis in Japanese law to do anything about it.
  That will change, both internationally and domestically, once the CWC 
enters into force.
  The convention will establish an international norm against the 
development of chemical weapons. It will provide the legal, political, 
and moral basis for firm action against those that choose to violate 
the rules. If the goal of treaty opponents truly is to target the 
chemical weapons programs of suspect states, then joining the 
convention is the best way to achieve this objective--and refusing to 
join is the surest way to protect the world's bad actions.


                             verifiability

  A great benefit of the chemical weapons convention is that it 
increases our ability to detect production of poison gas.
  Regardless of whether we ratify this convention, regardless of 
whether another country has ratified this convention, our intelligence 
agencies will be monitoring the capabilities of other countries to 
produce and deploy chemical weapons. The CWC will not change that 
responsibility.
  What this convention does, however, is give our intelligence agencies 
some additional tools to carry out this task. In short, it will make 
their job easier.
  In addition to onsite inspections, the CWC provides a mechanism to 
track the movement of sensitive chemicals

[[Page S2547]]

around the world, increasing the likelihood of detection. This 
mechanism consists of data declarations that require chemical companies 
to report production of those precursor chemicals needed to produce 
chemical weapons. This information will make it easier for the 
intelligence community to monitor these chemicals and to learn when a 
country has chemical weapons capability.
  In testimony before the Senate Foreign Relations Committee in 1994, 
R. James Woolsey, then Director of Central Intelligence, stated: ``In 
sum, what the chemical weapons convention provides the intelligence 
community is a new tool to add to our collection tool kit.''
  Recently, Acting Director of Central Intelligence, George Tenet, 
reemphasized this point before the Senate Select Committee on 
Intelligence. Mr. Tenet stated: ``There are tools in this treaty that 
as intelligence professionals we believe we need to monitor the 
proliferation of chemical weapons around the world. * * * I think as 
intelligence professionals we can only gain.''
  No one has ever asserted that this convention is 100 percent 
verifiable. It simply is not possible with this or any other treaty to 
detect every case of cheating. But I would respectfully submit that 
this is not the standard by which we should judge the convention. 
Instead, we should recognize that the CWC will enhance our ability to 
detect clandestine chemical weapons programs. The intelligence 
community has said that we are better off with the CWC than without 
it--that is the standard by which to judge the CWC.


                           constitutionality

  One of the issues that should not be contentious, and I hope will not 
continue to be a focus of attention, is whether the convention, and 
particularly its inspection regime, is constitutional.
  Every scholar that has published on the subject, and virtually every 
scholar that has considered the issue, has concluded that nothing in 
the convention conflicts in any way with the fourth amendment or any 
other provision of the U.S. Constitution.
  Indeed, to accommodate our special constitutional concerns, the 
United States insisted that when parties to the convention provide 
access to international inspection teams, the government may ``[take] 
into account any constitutional obligations it may have with regard to 
proprietary rights or searches and seizures.''
  In plain English, this means that inspectors enforcing the Chemical 
Weapons Convention must comply with our constitution when conducting 
inspections on U.S. soil.
  It also means that the United States will not be in violation of its 
treaty obligations if it refuses to provide inspectors access to a 
particular site for legitimate constitutional reasons.
  In light of this specific text, inserted at the insistence of U.S. 
negotiators, I am hard pressed to understand how anyone can seriously 
contend that the convention conflicts with the Constitution.
  There is nothing in the convention that would require the United 
States to permit a warrantless search or to issue a warrant without 
probable cause. Nor does the convention give any international body the 
power to compel the United States to permit an inspection or issue a 
warrant.
  This is the overwhelming consensus among international law scholars 
that have studied the convention, two of whom have written to me 
expressing their opinion that the convention is constitutional. I ask 
unanimous consent that the letters of Harvard law professor, Abram 
Chayes, and Columbia law professor, Louis Henkin, be included in the 
Record following my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. BIDEN. So let me make this point absolutely clear, despite what 
opponents of the convention have said, there will be no involuntary 
warrantless searches of U.S. facilities by foreign inspectors under 
this convention.
  In light of this, I hope that the constitutionality of this 
convention will not become an issue in this debate.
  Let me conclude that portion by suggesting to my distinguished 
colleague from Alabama, who is presiding, that I believe, on the 
merits, this is a good treaty. It is not merely me. The Senator from 
North Carolina listed people who do not think it is a good treaty. I 
will submit for the Record everyone, from General Schwarzkopf to the 
Joint Chiefs of Staff to Senator Lugar, people who believe very, very 
fervently, as I do, this is clearly in the overwhelming national 
interest of the United States of America. I ask unanimous consent that 
a list of supporters of the CWC be printed in the Record at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. BIDEN. Now let me move to the third issue. The notion of, as my 
friend from North Carolina stated, that there is an artificial date of 
April 29 made up by the administration to put undue pressure on the 
Senate to act. Let me point out for the Senate that there is nothing 
artificial about that date. It is real.
  What does that mean? It means that our failure to ratify before the 
29th will have consequences. First, the chemical weapons treaty 
mandates trade restrictions that could have a deleterious impact upon 
the American chemical industry. If the United States has not ratified, 
as long as they have not ratified, American companies will have to 
supply end user certificates to purchase certain classes of chemicals 
from the CWC signatories. After 3 years, they will be subject to trade 
sanctions that will harm American exports and jobs.
  I know that my friend says a lot of chemical companies do not like 
this. I come from a State that has a little bit of an interest in 
chemicals, the single most significant State in America that deals with 
chemicals. A little company called Du Pont; a little company called 
Hercules; a little company called ICI Americas; a little company called 
Du Pont Merck--little pharmaceutical outfits who are among the giants 
in the world. They are not what you call liberal Democratic 
establishments. They are ardently--I can testify--they are ardently in 
favor of this treaty. They believe it is desperately in the interest of 
the United States of America and their interest. This is not a bunch of 
lib labs out there who are arms controllers running around saying, 
``Disarm, ban the bomb.'' These are Fortune, not 500, not 100, 10, 
Fortune 10 companies that are saying, ``We want this treaty.'' And 
further, ``We will be harmed if we do not enter this treaty.''
  This overall governing body, known as the Conference of State 
Partners, is going to meet soon after April 29 to draw up the rules 
governing the implementation of this treaty. If we, to use the 
vernacular, ``ain't'' in by the 29th, if we are not on by the 29th, we 
do not get to draw up those rules.
  There used to be a distinguished Senator from Louisiana I served with 
for a long time. My friend, the Presiding Officer, knew him from his 
days up here. His name was Russell Long. He used to say kiddingly, ``I 
ain't for no deal I ain't in on.'' But the chemical industry, which is 
our largest exporter--hear what I just said--the biggest fish in the 
pond are saying, ``We want to be in on the deal.''
  That is why the 29th is important. If we are not a party to the CWC, 
we will not be a member of that conference. And this body, with no 
American input, could make rules that have a serious impact upon the 
United States.
  Third, there will be a body called the executive council with 41 
members on which we are assured of a permanent seat from the start 
because of the size of our chemical industry, that is, if we have 
ratified by the 29th. If we ratify after the council is already 
constituted, then a decision on whether to order a required surprise 
inspection on an American facility may be taken without an American 
representative evaluating the validity of the request and looking out 
for a facility's interest because we will not be on the standing 
executive council that makes that decision.

  Fourth, there will be a technical secretariat with about 150 
inspectors, many of whom would be Americans because of the size and 
sophistication of our chemical industry. If we fail to ratify the 
convention by the 29th, there will be no American inspectors.
  And finally, and most importantly, in the long term, by failing to 
ratify, we would align ourselves with those

[[Page S2548]]

rogue actors, those rogue states who have chosen to defy the Chemical 
Weapons Convention. There would be irreparable harm to our global 
leadership on critical arms control and nonproliferation issues.
  I will not take the time now to address other concerns that have been 
raised, because I said I would limit myself to these three points.
  Concluding, Mr. President, first, there has been good-faith, long and 
serious negotiations resulting in significant movement by the 
administration on conditions to the Chemical Weapons Convention.
  Second, this treaty is in the overwhelming national interest of the 
United States of America, a topic I am ready, willing, and anxious to 
debate with my distinguished colleague from North Carolina and others 
who think it is not. But at a minimum, Mr. President, the Senate should 
get a chance to hear that debate and vote on whether or not the 
distinguished Senator from North Carolina is correct or the Senator 
from Delaware is correct.

  Third, Mr. President, April 29 is not an artificial date. Because the 
triggering mechanism was when we got to 65 signatories, and that 6 
months after that date the treaty would enter into force.
  Well, 65 have signed on. And 6 months after they got to the No. 65, 
happens to be April 29. This is not artificial. We did not make up the 
date. That is what the treaty says.
  So, Mr. President, I sincerely hope that my friend from North 
Carolina, having reflected on the quandary the administration was 
placed in, which was to negotiate with the Lott group--they thought 
they were negotiating with Senator Helms; they thought they were 
negotiating with every Republican who had an objection, under the 
auspices of Senator Lott--if they had known that Senator Helms did not 
view that as the appropriate forum for this negotiation, they would 
have simultaneously met with him.
  But now at the end of the process, when we are about to go out on 
recess, to say that we are not ready to bring this treaty up when we 
get back unless there is a new negotiation, I find unusual, 
particularly since I have agreed with the Senator from North Carolina 
that I will sign on to additional conditions with him.
  Let us vote on the only nine outstanding issues that I am aware of 
that have been raised. None other has been raised that I am aware of, 
that the administration is aware of, anyone in the Lott group is aware 
of, to the best of my knowledge.
  So, Mr. President, let me conclude by saying, the Senator from North 
Carolina has dealt with me in good faith. We have negotiated in great 
detail. He has listed his 30 objections. We have agreed on 21 of the 
30. We disagree on nine. We agree on a method to vote on those nine.
  I sincerely hope--I sincerely hope--for the interest of the United 
States of America, after having already decided in the Bush 
administration that we would do away with the use of chemical weapons 
regardless of what anybody else did, that we would not now lose our 
place of leadership in the world and our ability to engage in the moral 
suasion that relates to nonproliferation and the diminution of weapons 
of mass destruction, that we would not now forgo that position merely 
because 1, 2 or 5 or 10 Senators said we should not even bring it on 
the floor to debate.
  I do not believe that will happen. But then again, my wife thinks I 
am a cockeyed optimist. But I do not think I am being unduly optimistic 
or a cockeyed optimist. I think having been here this long, that the 
Senate will get a chance to work its will. That is all I am asking. All 
I am asking is the Senate get a chance between now and the 29th of 
April to decide whether it likes this treaty or not. I believe every 
Member of this Senate has the national interests of the United States 
of America in mind when they act and when they vote.
  Let each of them vote their conscience on this treaty. If it turns 
out that 66 do not agree with me, then we have spoken, as we did in the 
League of Nations. The consequences of that vote I think were 
disastrous. I think the consequence of failure to ratify this treaty 
would be disastrous. But I think the consequence of not even letting 
the Senate vote will be catastrophic.
  I yield the floor, Mr. President.

                               Exhibit 1


                                           Harvard Law School,

                                 Cambridge, MA, September 9, 1996.
     Hon. Joseph R. Biden, Jr.,
     Ranking Member, Senate Judiciary Committee, Washington, DC.
       Dear Senator Biden, You have asked me to comment on the 
     suggestion that the Chemical Weapons Convention (the 
     Convention), now before the Senate for its advice and 
     consent, conflicts with the provisions of the Fourth 
     Amendment of the Constitution prohibiting unreasonable 
     searches and seizures. In my view, the suggestion is 
     completely without merit.
       The Convention expressly provides that: ``In meeting the 
     requirement to provide access * * * the inspected State Party 
     shall be under the obligation to allow the greatest degree of 
     access taking into account any constitutional obligations it 
     may have with regard to proprietary rights or searches and 
     seizures,'' (Verification Annex, Part X, par. 41)(emphasis 
     supplied).\1\
---------------------------------------------------------------------------
     \1\ The Verification Annex is, of course, an integral part of 
     the Convention.
---------------------------------------------------------------------------
       As you know, this provision of the Convention was inserted 
     at the insistence of the United States after earlier drafts, 
     which provided insufficient protection in regard to 
     unreasonable searches and seizures, had been criticized by a 
     number of U.S. scholars. The plain meaning of these words, 
     which seems too clear for argument, is that the United States 
     would have no obligation under the Convention to permit 
     access to facilities subject to its jurisdiction in violation 
     of the provisions of the Fourth Amendment. It was the clear 
     understanding of the negotiators that the purpose of the 
     provision was to obviate any possibility of conflict between 
     the obligations of the United States under the Convention and 
     the mandate of the Fourth Amendment. The Convention in its 
     final form is thus fully consistent with U.S. constitutional 
     requirements.
       Inspections required by the Convention will be conducted 
     pursuant to implementing legislation to be adopted by 
     Congress that will define the terms, conditions and scope of 
     the inspections to be conducted in the United States by the 
     Technical Staff of the Organization for the Prohibition of 
     Chemical Weapons (OPCW) established by the Convention. I 
     understand that draft implementing legislation entitled the 
     Chemical Weapons Convention Implementation Act, now before 
     the Congress, specifies the procedures that will be followed 
     in the case of both routine and challenge inspections carried 
     out pursuant to the Convention. The Act requires, at a 
     minimum, an administrative search warrant before an 
     inspection can be conducted, and has elaborate provisions for 
     notice and other protections to the owner of the premises to 
     be searched. These provisions of the Act are modeled on 
     similar administrative inspection regimes already authorized 
     by Acts of Congress such as the Toxic Substances Control Act 
     and upheld by the courts. However, if Congress is concerned 
     that these provisions are constitutionally insufficient, it 
     is free under the Convention to revise the Act to include 
     more stringent requirements that conform to constitutional 
     limitations. Finally, a person subject to inspection may 
     challenge the inspection in a U.S. court, which in turn will 
     be bound to invalidate any inspection that fails to comply 
     with constitutional requirements. In view of the provisions 
     of the Verification Annex quoted above, the United States 
     would not be in violation of any international obligation in 
     such an eventuality.
       For these reasons I conclude that there is no 
     constitutional objection to the Convention, and that the 
     rights of individuals under the Fourth Amendment will be 
     fully protected under the Convention and implementing 
     legislation of the character presently contemplated.
       In addition, I have been involved in the field of arms 
     control as a scholar and practitioner for many years, going 
     back to the Limited Test Ban Treaty in 1963, in connection 
     with which I appeared before the Senate Foreign Relations 
     Committee as Legal Adviser of the State Department. I have 
     also closely followed the negotiations for the Chemical 
     Weapons Convention. The United States has been a prime mover 
     in the development of the Convention under both Republican 
     and Democratic administrations. I am convinced that the 
     prompt ratification of the Chemical Weapons Convention is 
     overwhelmingly in the security interest of the United States 
     and should not be derailed by constitutional objections that 
     are so plainly without substance.
           Sincerely,
                                                     Abram Chayes,
     Felix Frankfurter, Professor of Law Emeritus.
                                  ____

                                        Columbia University in the


                                             City of New York,

                                 New York, NY, September 11, 1996.
     Senator Joseph R. Biden, Jr.,
     U.S. Senate, Washington, DC.
       Dear Senator Biden: As requested, I have considered 
     whether, if the United States adhered to the Convention on 
     Chemical Weapons, the inspection provisions of the Convention 
     would raise serious issues under the United States 
     Constitution. I have concluded that those provisions would 
     not present important obstacles to U.S. adherence to the 
     Convention.
       Like domestic laws, treaties of the United States are 
     subject to constitutional restraints. The Fourth Amendment to 
     the

[[Page S2549]]

      United States constitution provides: ``The right of the 
     people to be secure in their persons, houses, papers, and 
     effects, against unreasonable searches and seizures, shall 
     not be violated * * *'' Constitutional jurisprudence has 
     established that the right to be secure applies also to 
     industrial and commercial facilities and to business records, 
     papers and effects.
       The Constitution, however, protects the rights of private 
     persons; it does not protect governmental bodies, public 
     officials, public facilities or public papers. As to private 
     persons, the Fourth Amendment protects only against searches 
     and seizures that are ``unreasonable.'' Inspection 
     arrangements, negotiated and approved by the President and 
     consented to by the Senate, designed to give effect to a 
     treaty of major importance to the United States, carry a 
     strong presumption that they are not unreasonable.
       The Chemical Convention itself anticipated the 
     constitutional needs of the United States. Part X of the 
     Convention, ``Challenge Inspection pursuant to Article IX,'' 
     provides: ``41. In meeting the requirement to provide access 
     as specified in paragraph 38, the inspected State party shall 
     be under the obligation to allow the greatest degree of 
     access taking into account any constitutional obligation it 
     may have with regard to proprietary rights of searches and 
     seizures.''
       As applied to the United States, that provision is properly 
     interpreted to mean that the United States must provide 
     access as required by the Convention, but if the Constitution 
     precludes some access in some circumstances, the United 
     States must provide access to the extent the Constitution 
     permits. And if, because of constitutional limitations, the 
     United States cannot provide full access required by the 
     Convention, the United States is required ``to make every 
     reasonable effort to provide alternative means to clarify the 
     possible noncompliance concern that generated the challenge 
     inspection.'' (Art. 42.)
       The United States would be required also to adopt measures 
     to overcome any constitutional obstacles to any inspection or 
     interrogation required by the Convention. If it were 
     determined to be necessary, the United States could satisfy 
     the requirements of the Fourth and Fifth Amendments by 
     arranging for administrative search warrants, by enacting 
     statutes granting immunity from prosecution for crimes 
     revealed by compelled testimony, by providing just 
     compensation for any ``taking'' involved.
           Sincerely yours,
                                                     Louis Henkin,
     University Professor Emeritus.
                                  ____


                               Exhibit 2

     Distinguished Individuals and Organizations Supporting the CWC

       William Jefferson Clinton.
       George Bush.
       Madeleine Albright.
       James A. Baker III.
       Warren Christopher.
       William Cohen.
       John M. Deutch.
       Lawrence Eagleburger.
       John Holum.
       Nancy Kassebaum.
       Stephen Ledogar, U.S. Representative to the Conference on 
     Disarmament.
       Ronald Lehman, former Director of the Arms Control and 
     Disarmament Agency.
       Vil Mirzayanov, whistleblower on the Soviet/Russian 
     novichok program.
       Sam Nunn.
       William Perry.
       Gen. Colin Powell.
       William A. Reinsch, Under Secretary of Commerce for Export 
     Administration.
       Janet Reno, Attorney General.
       Gen. Norman Schwartzkopf, U.S.A. (Ret.).
       Gen. Brent Scowcroft.
       Gen. John Shalikashvili.
       Walter B. Slocombe, Deputy Under Secretary for Policy, 
     Department of Defense.
       George Tenet, Acting Director of Central Intelligence.
       R. James Woolsey, former Director of Central Intelligence.
       Adm. E.R. Zumwalt, former Chief of Naval Operations.
       Kenneth Adelman, Columnist, The Washington Times.


                         Industry Organizations

       The Chemical Manufacturers Association (CMA)--
     (approximately 200 member companies).
       The Synthetic Organic Chemical Manufacturers Associations 
     (SOCMA)--(over 260 member companies).
       The Pharmaceutical and Research Manufacturers of America 
     (PhRMA)--(over 100 member companies).
       The Biotechnology Industry Organization (BIO)--(over 650 
     member companies and organizations).
       The American Chemical Society (ACS)--(over 150,000 
     members).
       The American Physical Society (APS)--(over 40,000 members).
       The Council for Chemical Research (CCR)--(approximately 200 
     University, business & governmental laboratories).
       The American Institute of Chemical Engineers (AIChE)--
     (approximately 60,000 members).
       The Business Executives for National Security (BENS)--
     (approximately 750 members).


                Leaders of the following U.S. Businesses

       AEA Investors.
       Air Products and Chemicals, Inc.
       Akzo Nobel Chemicals, Inc.
       ARCO Chemical Company.
       Ashland Chemical Company.
       Automatic Data Processing.
       BASF.
       Bayer Corporation.
       Bear Stearns & Company, Inc.
       Betz Dearborn, Inc.
       The BF Goodrich Co.
       Borden Chemicals and Plastic, LP.
       BP Chemicals, Inc.
       Capricorn Management.
       Carus Chemical Company.
       C.H.O. Enterprises, Inc.
       The CIT Group, Inc.
       Compton Development.
       Crompton & Knowles Corporation.
       Dow Chemical Company.
       Dow Corning Corporation.
       Eastman Chemical Company.
       E.I. duPont de Nemours.
       Elf Atochem North America.
       Enthone-OMI Inc.
       Ethyl Corporation.
       Eugene M. Grant and Company.
       Exxon Chemical Company.
       FINA, Inc.
       FMC Corporation.
       General Investment & Development Co.
       Givaudan-Roure Corporation.
       Great Lakes Chemical Corporation.
       Harman International.
       Harris Chemical Group.
       HASBRO Inc.
       The Hauser Foundation.
       Hechinger Company.
       Hercules, Inc.
       Hoechst Celanese Corporation.
       International Financial Group.
       International Maritime Systems.
       Kansas City Southern Industries.
       Lippincott Foundation.
       Lonza Inc.
       McFarland Dewey & Company.
       Mallinckrodt Group, Inc.
       Monsanto Chemical.
       Morton International, Inc.
       Nalco Chemical Company.
       National Starch & Chemical Company.
       NOVA Corporation.
       Occidental Chemical Corporation.
       Olin Corporation.
       Oxford Venture Corporation.
       Perstorp Polyols, Inc.
       PPG Industries, Inc.
       Quantum Chemical Company.
       The R & J Ferst Foundation.
       RCM Capital Management.
       Reichhold Chemicals, Inc.
       Reilly Industries, Inc.
       Rhone-Poulenc, Inc.
       Rohm and Haas Company.
       Rosewood Stone Group.
       R.T. Vanderbilt Company, Inc.
       The Sagner Companies, Inc.
       Sargent Management.
       Sartomer Company.
       Scott Foresman/Addison Wesley.
       Sonesta International.
       Stepan Company.
       Sterling Chemicals, Inc.
       Tennant Company.
       Texas Brine Corporation.
       Tica Industries, Inc.
       Union Carbide Corporation.
       Uniroyal Chemical Company, Inc.
       United Retail Group, Inc.
       Velsicol Chemical Corporation.
       Vulcan Chemical: John Wilkinson.
       W.R. Grace & Company: Albert J. Costello.


                         veterans organizations

       American Ex-Prisoners of War.
       American GI Forum of the United States.
       AMVETS.
       Jewish War Veterans of the U.S.A.
       Korean War Veterans Association.
       National Gulf War Resource Center.
       Reserve Officers Association.
       Veterans for Peace.
       Veterans of Foreign Wars.
       Vietnam Veterans of America, Inc.


                          u.s. nobel laureates

       Julius Adler.
       Sidney Altman.
       Philip W. Anderson.
       Kenneth J. Arrow.
       Julius Axelrod.
       David Baltimore.
       Helmut Beinert.
       Konrad Bloch.
       Baruch S. Blumberg.
       Herbert C. Brown.
       Thomas R. Cech.
       Stanley Cohen.
       Leon N. Cooper.
       Johann Deisenhofer.
       Renato Dulbecco.
       Gertrude B. Elion.
       Edmond H. Fischer.
       Val L. Fitch.
       Walter Gilbert.
       Dudley Herschbach.
       David Hubel.
       Jerome Karl.
       Arthur Kornberg.
       Edwin G. Krebs.
       Joshua Lederberg.
       Wassily W. Leontiel.
       Edward B. Lewis.
       William N. Lipscomb.
       Mario J. Molina.
       Joseph E. Murray.
       Daniel Nathans.
       Marshall Nirenberg.
       Arno A. Penzias.
       Norman F. Ramsey.
       Burton Richter.
       Richard J. Roberts.
       Martin Rodbell.
       F. Sherwood Rowland.
       Glenn T. Seaborg.

[[Page S2550]]

       Herbert A. Simon.
       Phillip A. Sharp.
       R. E. Smalley.
       Robert M. Solow.
       Jack Steinberger.
       Henry Taube.
       James Tobin.
       Charles H. Townes.
       Eric Wieschaus.
       Robert R. Wilson.


                            religious groups

       American Friends Service Committee.
       The American Jewish Committee.
       American-Jewish Congress.
       Anti-Defamation League.
       B'nai B'rith.
       Church of the Brethren, Washington Office.
       Church Women United.
       Commission on Social Action of Reform Judaism.
       The Episcopal Church.
       Episcopal Peace Fellowship.
       Evangelical Lutheran Church of America.
       Friends Committee on National Legislation.
       Maryknoll Justice and Peace Office.
       Mennonite Central Committee.
       Methodists United for Peace with Justice.
       National Council of Churches.
       National Jewish Community Relations Advisory Council.
       NETWORK: A National Catholic Social Justice Lobby.
       Presbyterian Church (USA).
       Union of American Hebrew Congregations.
       Unitarian Universalist Association.
       United Church of Christ, Office for Church in Society.
       United Methodist Board of Church and Society.
       United States Catholic Conference.
       The United Synagogue of Conservative Judaism.


                         public interest groups

       American Association for the Advancement of Science.
       American Bar Association.
       Americans for Democratic Action.
       American Public Health Association.
       Arms Control Association.
       Association of the Bar of the City of New York.
       Center for Defense Information.
       Chemical Weapons Working Group.
       Council for a Livable World.
       CTA/Bellona Foundation USA.
       Demilitarization for Democracy.
       Economists Allied for Arms Reductions.
       Federation of American Scientists.
       Friends of the Earth.
       Fund for New Priorities in America.
       Greenpeace.
       Henry L. Stimson Center.
       Human Rights Watch.
       International Center.
       Lawyer's Alliance for World Security.
       League of Women Voters.
       National Resources Defense Council.
       Peace Action.
       Physicians for Social Responsibility.
       Plutonium Challenge.
       Public Education Center.
       Saferworld.
       Sierra Club.
       Taxpayers for Common Sense.
       20/20 Vision National Project.
       Union of Concerned Scientists.
       Women's Action for New Directions.
       Women's International League for Peace and Freedom.
       Women Strike for Peace.
       World Federalist Association.

  Mr. BIDEN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HELMS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HELMS. I thank the Chair.
  Mr. President, I was able to hear part of the brief address by my 
friend from Delaware. What he apparently does not know is that I was a 
part of the Lott group to which he referred. I attended the meetings. I 
participated. That group did accomplish a few things of minor 
significance, but they could not do anything of importance, not in the 
really serious issues.
  So then they fell back, and there have been no more meetings of the 
Lott group. My suggestion has been followed about trying to do it on 
the staff level. But if the Senator from Delaware, or anyone else, 
thinks they can drive a stake between the majority leader and me, they 
will have to think again.
  I am not going to try to answer the many erroneous statements he has 
made. And I know he was ad-libbing and he was not hearing his staff 
whisper to him, and so forth. So he was operating under difficult 
circumstances.
  But I say, again, I want this treaty to be made into an instrument 
that will be beneficial to the American people and to this country. It 
is my intent to continue to insist upon that. It is my intent, along 
with the approval of the distinguished majority leader, inasmuch as we 
have so many new Senators who were not here last year, the 
distinguished occupant of the Chair being one of them, and did not have 
the benefit of the testimony of witnesses, pro and con, who are highly 
respected in the foreign relations community.

                          ____________________