[Congressional Record Volume 143, Number 49 (Wednesday, April 23, 1997)]
[Senate]
[Pages S3478-S3481]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                        THE DEFENSE SECRETARIES

  Many of the arguments of CWC critics were crystallized in the 
comments of three former defense Secretaries.
  They repeat several old arguments used by other critics of the CWC.
  Many critics act as if this is the first time these concerns have 
been expressed and that Members have not taken actions to deal with 
them. How many of these critics are familiar with the resolution of 
ratification passed out of the Committee on Foreign Relations last year 
for example? How many of them are familiar with the draft resolution of 
ratification that has been under negotiation this year? A resolution of 
ratification is precisely the vehicle through which contentious matters 
of interpretation are taken up and conditions added to conform U.S. 
domestic law to U.S. interpretations.
  First, the complacency argument: One old argument is about the 
complacency situation; namely, that the CWC would lull the country into 
a false sense of security and a tendency to neglect defenses against 
chemical weapons.
  This is a matter of political will at home in the United States; it 
has nothing to do with the treaty. This is what we pay Secretaries of 
Defense to guard against. This is what we are paid in the U.S. Senate 
to guard against.
  Perhaps I have more faith in the U.S. Senate's willingness to carry 
out its responsibilities under the Constitution than do critics of the 
treaty. There is nothing inevitable about arms control agreements 
contributing to a lessened perceived need and therefore support for 
defenses against such threats. But there is something wrong with the 
notion that by allowing our potential adversaries to have chemical 
weapons, we are sure to be reminded to defend against them.
  It may be that the Defense Department was willing to reduce its 
request in 1995 for funds for chemical defenses, but the Congress has 
never had any problem in the past in plusing up administration requests 
for defense situations. Funding for ballistic missile defense is a 
perfect example. Indeed, Secretary of Defense Cohen recently indicated 
that an additional $225 million is being requested for chemical 
defenses.
  One should have little sympathy for the complacency argument employed 
against the CWC. Rather than whining about complacency, Congress ought 
to do its job and authorize and appropriate what funds are necessary to 
provide for a robust chemical defense capability.
  By the same token, concerns are expressed about a possible reduction 
in the priority accorded to monitoring emerging chemical weapons 
threats. That is not the way recent budget requests from the 
intelligence community came across. Moreover, the community itself 
wants the CWC precisely because it will provide additional tools to the 
community to monitor the chemical weapons situation. Again,

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Congress has every ability to add or shift funds to ensure that CWC 
monitoring remains a funding priority.
  In fact, one of the conditions included in the resolution of 
ratification deals with the preservation of robust defenses against 
chemical weapons. It states the necessity for preserving and further 
developing robust defenses against chemical and biological weapons. 
Increased readiness must be emphasized at the highest levels and 
supported with the necessary funding within the executive branch of the 
Government and the United States Armed Forces.

  Second, Article XI: Some critics have placed much emphasis on the so-
called poisons for peace argument--namely, that the CWC will obligate 
member states to facilitate transfers of CWC-specific technology, 
equipment and material to member states of the convention. Further, 
they charge that the treaty commits new member states not to observe 
any agreements that would restrict these transfers.
  It is tragic that American critics of the CWC would swallow the 
Iranian interpretation of Article XI rather than that of the American 
delegation to the convention, and the interpretation of the Commerce 
Department, and the U.S. chemical industry. Why are these critics so 
intent on giving credibility to the Iranian interpretation? Why do they 
wish to align themselves with the rogue states on this issue?
  To be sure, the issue of assistance, Article XI, was one of the more 
contentious issues during the end game of the CWC negotiations. The 
more radical, nonaligned states, led by Iran, demanded that this 
provision be interpreted so as to require the elimination of any export 
controls in the chemical arena for states parties in good standing.
  But the United States and others rejected that argument and 
maintained that their interpretation of article XI did not require them 
to do so, that mechanisms such as the Australian Group were legitimate 
under the CWC, and that the work of the Australia Group would continue. 
The members of the Australia Group did propose to review their 
practices and procedures at some undefined time in the future, but only 
after they had a period of experience with the treaty in force, during 
which they could judge whether that practical experience might justify 
a reconsideration of their export controls.
  The basic CWC obligation is contained in article I--this is, to 
``never under any circumstances: . . . (d) To assist, encourage or 
induce in any way, anyone to engage in any activity prohibited . . .'' 
And it means what it says. This basic obligation overrides any 
requirement--any requirement--to facilitate trade or technical 
cooperation when there is a proliferation concern.
  There is nothing automatic about the assistance provisions of article 
XI, and it will certainly not mean that the floodgates will be open for 
the exchange of chemical materials and equipment with rogue states, as 
critics have stated. It merely affirms the right of the parties to 
engage in chemical commerce for peaceful purposes, that is, industrial, 
agriculture, research, pharmaceutical, medical or other pursuits as 
they do today. A state with chemical weapons aspirations has no treaty 
right to anything that furthers those aspirations. And nothing in the 
treaty requires the elimination of our export controls on chemical 
materials and equipment. The United States and other Western countries 
have made clear to the Organization for the Prohibition of Chemical 
Weapons, the OPCW, the governing board, as well as all states parties 
that the provision in question does not entail any obligation to 
eliminate existing export control regulations on chemical material and 
equipment.
  One condition in the resolution of ratification deals specifically 
with the issue of interpretation over article XI. It states in part 
that: ``the various provisions of the CWC preserve the right of State 
Parties to maintain or impose export controls for foreign policy or 
national security reasons, and that nothing in the Convention obligates 
the United States to accept any weakening of its existing national 
export controls.''
  If, as the critics state, the CWC would likely leave the United 
States more, not less, vulnerable to chemical attack, then the blame 
resides with political leaders in the United States, not with the 
convention. The treaty in no way constrains our ability as a nation to 
provide for a robust defense against chemical weapons or to impose or 
maintain export controls for foreign policy and national security 
reasons.
  Third, Dumbing Down of Intelligence: There is also the charge that, 
if the United States is not a CWC participant, the danger is lessened 
that American intelligence about foreign chemical programs will be 
dumbed down or compromised. This is a variation on the politicizing of 
intelligence argument taken to the extreme. Again, any dumbing down of 
intelligence has nothing to do with the convention. Moreover, a 
willingness to act in the face of noncompliance by other signatories is 
a political decision, not an intelligence decision. If critics want to 
fault American political leadership, fine, but this has nothing to do 
with the strengths or weaknesses of the convention.
  Fourth, Costs and the Constitution: Fourth, various critics worry 
about the costs associated with U.S. participation in a multilateral 
regime and cite the outlandish estimate of $200 million annually. This 
hardly squares with the estimates offered by the Congressional Budget 
Office and fails to take account what the administration has actually 
requested for fiscal year 1998--namely $46 million. And quite 
predictably, the critics drift from the cost charge into the 
constitutional charge that U.S. participation in the convention could 
leave U.S. citizens and companies vulnerable to burdens associated with 
reporting and inspection arrangements, jeopardize confidential business 
information, and other charges.
  Industry is expected to pay its own costs associated with reporting 
and receiving an inspection. Industry does not contribute to the cost 
of carrying out international inspections. Inspection costs are covered 
in the OPCW budget to which the U.S. Government will contribute. Annual 
costs to industry are expected to be about $4 million in the first year 
and less in subsequent years. Inspection costs are not expected to be 
more than an EPA or OSHA inspection--this means no more than $10,000 
per inspection and probably much less. Based on practice inspections, 
no shutdown of facilities is anticipated, which would be an important 
cost factor.
  U.S. industry would not support the CWC, as it does, if it posed 
significant risks to confidential business information. Protections 
against the loss of confidential business information are incorporated 
into the CWC and the administration's proposed implementing 
legislation. Industry has worked intensively on both to ensure these 
protections are adequate.
  Unlimited inspector access is not required. For routine inspections, 
each facility has the right to define the degree of access through a 
negotiated facility agreement and may thus protect sensitive 
information. Furthermore, routine inspections can be anticipated, 
providing ample time for preparation.

  In challenge inspection scenarios access to the site must be provided 
120 hours after a request for a challenge inspection is received by the 
OPCW. Once access is granted, the principles of managed access apply. 
Under managed access, the inspected facility can negotiate the degree 
of access on the spot, and, while obligated to provide alternative 
means to satisfy concerns about compliance, the facility is not 
obligated to allow inspectors to go anywhere they like.
  Allegations that the CWC will require violations of the Constitution 
are wrong. The proposed implementing legislation provides for search 
warrants if routine or challenge inspections must be carried out 
without consent. So does the resolution of ratification. The CWC also 
allows the United States to take into account constitutional 
obligations regarding searches and seizures and proprietary rights in 
providing access under challenge inspections.
  When CWC negotiations commenced, President Reagan wisely decided to 
include representatives from the American chemical industry in the 
formation and evolutionary decisionmaking process of U.S. negotiating 
positions. Thus, the American chemical industry has participated every 
step of the way in the development of the convention and played a major 
role in crafting the language with regard to constitutional

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safeguards and protection of industry rights and information during any 
inspections.
  In September 1996, the National Federation of Independent Business 
expressed some concern regarding the potential impact of CWC reporting 
requirements on the U.S. small business community.
  More recently, the National Federation of Independent Business has 
revised its position on the CWC. A February 14, 1997, Wall Street 
Journal article by Carla Robbins quoted Dan Danner, vice president of 
Federal Government Affairs, as saying, ``It is now our belief our 
members are not going to be impacted.'' The article went on to convey 
NFIB's view that treaty opponents who suggested that NFIB was opposed 
to the CWC were ``100% incorrect.''
  Mr. Danner reiterated the National Federation of Independent Business 
position in a March 5 letter to me in which he said, ``It is now our 
belief that the small business owners that we represent will not likely 
be included in the reporting requirements and, therefore, not affected 
by the CWC. Our concerns have been answered to our satisfaction.''
  Fifth, Russia and the CWC: Some critics claim that Russian activities 
with regard to its stockpile will be unaffected by whether the United 
States joins the convention and that Russia has, in any event, been 
developing new chemical agents that would circumvent the treaty's 
constraints.
  Let us be clear about one thing. Russian activities will surely be 
unaffected if the United States does not ratify the CWC. Some Russians 
are grateful for the support they find for their position on the CWC 
from many American critics of the convention. One thing is certain: The 
Russians do not want the United States to ratify the Chemical Weapons 
Convention. Why? Because they know they cannot afford to have the 
United States participating in the OPCW without them. By the same 
token, if the United States does not join, the Russian Government has 
very little incentive to expend the political resources necessary to 
bring various elements of the military-chemical complex into line with 
treaty provisions. However, the Russian Government and the branches of 
the Russian Parliament are moving the CWC through the ratification 
process to the point where it could be acted upon in short order if the 
United States ratifies.
  Second, the point is not that Russia is developing agents that would 
circumvent the treaty's constraints. Rather, the point is that we know 
that they are developing them, they are or can be added to the treaty's 
prohibited list, and that without the CWC, there is absolutely nothing 
illegal or noncompliant about Russian activities in this area.
  The CWC is not perfect, but it is necessary for the additional tools 
it provides the United States,
  No. 1, giving us leverage not just for the United States, but for the 
entire international community to pressure Russia to destroy its huge 
chemical weapons stockpile;
  No. 2, it acts as a means to reinforce the norms against chemical 
weapons;
  No. 3, it gives an ability to track chemical trade;
  No. 4, it gives procedures for evaluating important information for 
the intelligence community;
  No. 5, it gives a requirement for state parties to pass 
domestic legislation criminalizing activities prohibited by the treaty; 
and

  No. 6, the CWC gives a legal basis for the international community to 
take action in the face of unacceptable behavior.


                             A SUBSTITUTE?

  What are the critics of the treaty offering to accomplish these same 
tasks? What are they proposing that will help diminish the 
international chemical weapons threat?
  To be sure, a piece of legislation was passed last week--Senate bill 
495--which overlaps the CWC and its implementing legislation in several 
areas. But by no means can one consider this domestic piece of 
legislation equal to or a substitute for an international multilateral 
treaty which not only bans use of chemical weapons but bans the 
manufacturing, stockpiling, trade, and deployment of chemical weapons.
  Senate bill 495 calls for U.S. leadership in adding ``teeth'' to the 
1925 Geneva Protocol banning chemical weapons use. But the United 
States has already done this and the final product is the document 
before us today--the Chemical Weapons Convention. The Reagan and Bush 
administrations wisely decided to pledge not to manufacture, produce, 
or stockpile chemical weapons; the CWC forces other members to do the 
same. Without the CWC, the rest of the world would be allowed to make, 
stockpile, and deploy chemical weapons, and the United States would 
only be able to react after a Syria, Libya, Iraq, or North Korea has 
used chemical weapons on its population, its neighbors, or on American 
troops. At that point it will be too late for the victims.
  S. 495 does nothing to address the concerns of the U.S. chemical 
industry. In a letter signed by 53 chief executive officers of 
America's largest chemical companies they state: ``our industry's 
status as the world's preferred supplier of chemical products may be 
jeopardized if the U.S. does not ratify the [CWC]. If the Senate does 
not vote in favor of the CWC, we stand to lose hundreds of millions of 
dollars in overseas sales, putting at risk thousands of good-paying 
American jobs.'' S. 495 does nothing to solve industry's concerns 
regarding the negative impact the CWC would have on their international 
competitiveness if the United States does not ratify the convention 
before April 29.
  Indeed, S. 495 is designed primarily to deal with the consequences of 
a chemical incident on American soil, not on its prevention or 
deterrence, as is the case with the CWC.
  Whereas the CWC specifies illegality without qualification or 
condition--the use or possession of chemical weapons is absolutely 
prohibited--the enactment of S. 495 without CWC ratification would mean 
that the United Staes is not obligated to destroy those chemical 
weapons that is not already committed to destroy under the 1986 law. In 
this respect S. 495 is most certainly for the United States a law that 
authorizes the retention of the most dangerous chemical weapons. Thus, 
while the CWC would establish a clear and binding international 
prohibition against the possession of chemical weapons, enactment of S. 
495 without CWC ratification would establish a clear U.S. position in 
support of those nations, including the United States, who choose to 
maintain these weapons.
  In fact, S. 495's prohibitions against possession or use, and so 
forth, of chemical weapons are merely antiterrorism provisions, without 
significant transnational strategic implications, which are already 
provided for by existing United States law. As to the law's provisions 
that the U.S. will impose sanctions against nations that use chemical 
weapons, it is highly questionable whether such sanctions will be 
effective; in any event, these sanctions expressly do not apply to 
nations that stockpile but do not use chemical weapons.
  S. 495 merely reinforces the status quo. Without the CWC, states 
interested in developing chemical weapons--Syria, Libya, Iran, Iraq, 
and North Korea--will have free rein to pursue their programs. As we 
saw in the case of Iraq, existing policy tools are not adequate.


        THE RESOLUTION OF RATIFICATION: EXECUTIVE RESOLUTION 75

  I have spent considerable time reviewing the resolution of 
ratification to the Chemical Weapons Convention to be laid before the 
Senate, Senate Executive Resolution 75, and measuring the proposed 
conditional remedies against perceived and/or real shortcomings in the 
convention and against the benefits to the United States of full 
participation in the convention.
  Exhaustive negotiations over the past several months have produced a 
set of 33 conditions to the resolution of ratification; 28 of these 
conditions enjoy the support of those involved in the negotiations. I 
support them. Under a unanimous-consent agreement, the Senate will 
consider these 28 conditions as a package--on a voice vote.
  Then the Senate will turn to the remaining five conditions which are 
in dispute. I have concluded that the effect of these remaining 
conditions proposed in Senate Executive Resolution 75 would be to 
destroy the Chemical Weapons Convention in a supposed effort to save 
it.
  I firmly believe that these remaining conditions--the Senate will 
have a separate vote on each--would, if accepted,

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be tantamount to killing the Chemical Weapons Convention outright, or 
would have a significant adverse impact on its implementation.
  Any condition that requires, as the price of ratification that all or 
parts of the treaty be renegotiated before it can enter into force is a 
killer. It is unrealistic to expect that we can renegotiate a treaty 
with over 160 signatories. Additionally, a U.S. condition of this 
nature would not only prevent U.S. participation in the convention but 
could encourage other signatories contemplating ratification to attach 
similarly unacceptable conditions.
  Four of the proposed conditions would require the President to make 
certain certifications to the Senate prior to depositing instruments of 
ratification, certifications that certainly cannot be made by April 29, 
if ever. Consequently, approval of any of these conditions would 
prevent the United States from joining the treaty. The fifth would be 
very bad policy, at once undermining two U.S. objectives: to maintain 
an effective onsite inspection regime and to have U.S. inspectors 
participate in inspections of suspect states.
  The unanimous-consent agreement is carefully configured so that no 
substitute amendments or conditions in these five areas of disagreement 
can be offered. Only motions to strike will be in order.
  Let me deal with each of the five conditions.