[Congressional Record Volume 145, Number 135 (Thursday, October 7, 1999)]
[Senate]
[Pages S12176-S12178]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   THE COMPREHENSIVE TEST BAN TREATY

  Mr. BYRD. Mr. President, the Senate tomorrow is scheduled to begin 
debate on one of the most important and solemn matters that can come 
before this body--a resolution of ratification of a Treaty of the 
United States. The Treaty scheduled to come before us on Friday is the 
Comprehensive Nuclear Test Ban Treaty, commonly referred to as the 
CTBT.
  Consideration of a Treaty of this stature is not--and it should never 
be--business as usual. A Treaty is the supreme law of this land along 
with the Constitution and the Laws that are made by Congress pursuant 
to that Constitution. Article VI of the Constitution so states: ``This 
Constitution, and the Laws of the United States which shall be made in 
Pursuance thereof; and all Treaties made, or which shall be made, under 
the Authority of the United States, shall be the supreme Law of the 
Land; and the Judges in every State shall be bound thereby, any Thing 
in the Constitution of Laws of any State to the Contrary 
notwithstanding.''
  Mr. President, consideration of a Treaty is not business as usual.
  And yet, Mr. President, I regret to say that the Senate is prepared 
to begin consideration of the Comprehensive Test Ban Treaty under a 
common, garden-variety, unanimous consent agreement, the type of 
agreement that the Senate has come to rely upon to churn through the 
nuts-and-bolts legislation with which we must routinely deal, as well 
as to thread a course through the more contentious political minefields 
with which we are frequently confronted.
  In fact, unanimous consent agreements have become so ubiquitous that 
silence from a Senator's office is often automatically assumed to be 
acquiescence. So it was the case when this unanimous consent request 
came to my office. I was not in the office at the time. We are very 
busy doing other things, working on appropriations bills, and so on. 
And so at the point when this unanimous consent agreement proposal 
reached my office, I was out of the office. When I came back to the 
office a little while later, the request was brought to my attention. 
But by the time it was brought to my attention, it was too late. I 
notified the Democratic Cloakroom that I would object to the unanimous 
consent agreement, but I was informed that the agreement had already 
been entered into.
  I make this point not to criticize the well-intentioned objective of 
this unanimous consent agreement, which was to seek consensus on the 
handling of a controversial matter. I do not criticize the two leaders 
who devised the agreement. I criticize no one. I do, however, point out 
the unfortunate repercussions of the agreement as it affects the 
Senate's ability to consider the ratification of a treaty.
  In short, unanimous consent is a useful tool, and it is a practical 
tool of the Senate. I suppose I may have, during the times I was 
majority leader of the Senate, constructed as many or more unanimous 
consent agreements than perhaps anybody else; I certainly have had my 
share of them, but it is not an all-purpose tool.
  The unanimous consent agreement under which the Comprehensive Test 
Ban Treaty is to be considered reads as follows, and I now read from 
the Executive Calendar of the Senate dated Thursday, October 7, 1999.

       Ordered, That on Friday, October 8, 1999, at 9:30 a.m., the 
     Senate proceed to executive session for consideration of the 
     Comprehensive Nuclear Test-Ban Treaty; that the treaty be 
     advanced through the various parliamentary stages, up to and 
     including the presentation of the resolution of ratification; 
     that it be in order for the Majority Leader and the 
     Democratic Leader to each offer one relevant amendment; that 
     amendments must be filed at the desk 24 hours before being 
     called up; and that there be a time limitation of four hours 
     equally divided on each amendment.
       Ordered further, That there be fourteen hours of debate on 
     the resolution of ratification equally divided between the 
     two Leaders, or their designees; that no other amendments, 
     reservations, conditions, declaration, statements, 
     understandings or motions be in order.
       Ordered further, That following the use or yielding back of 
     time and the disposition of the amendments, the Senate 
     proceed to vote on adoption of the resolution of 
     ratification, as amended, if amended, all without any 
     intervening action or debate.

  So if one reads the agreement, it is obvious that the treaty itself 
will not be before the Senate for consideration. I allude to the words 
in the unanimous consent request, namely:

       . . . that the treaty be advanced through the various 
     parliamentary stages, up to and including the presentation of 
     the resolution of ratification.


[[Page S12177]]


  So the Senate will not have any opportunity to amend the treaty, 
itself, but it is the resolution of ratification that will be before 
the Senate.
  Mr. President, the foregoing unanimous consent agreement may be 
expedient and there may be some who would even consider it to be a 
savvy way to dispose of a highly controversial and politically divisive 
issue in the least amount of time with the least amount of notoriety. 
The politics of this issue are of no interest to me. I am not 
interested in the politics of the issue. I have not been contacted by 
the administration in any way, shape, form, or manner. Nobody in the 
administration has talked with me about this. I am not interested in 
the politics of it. Not at all. There has been some politics, of 
course, abroad, about this agreement, but I am not a part of that. I 
did join in a letter to the chairman of the Foreign Relations Committee 
urging that there be hearings, but I have not been pressing for a vote 
on the treaty.
  The politics of the issue do not interest me. But the propriety of 
this unanimous consent agreement does. Simply put, it is the wrong 
thing to do on a matter as important and as weighty as an arms control 
treaty.
  The Senate Armed Services Committee began a series of hearings on the 
CTBT just this week, and I commend the distinguished chairman of the 
Committee, Senator Warner, and the distinguished ranking member, 
Senator Carl Levin, for their efforts and commitment to bring this 
matter before the Senate and to have hearings conducted thereon.
  The first hearing, on Tuesday, was a highly classified and highly 
informative briefing by representatives of the CIA and the Department 
of Energy. I wish that all of my colleagues had the opportunity to hear 
the testimony given at that hearing, and to question the witnesses. 
Unfortunately, only the members of the Senate Armed Services Committee 
were privy to that information. I should say the distinguished ranking 
member of the Senate Foreign Relations Committee, Mr. Biden, was 
present also.
  The second hearing, yesterday, brought before the Committee Defense 
Secretary Bill Cohen; General Henry Shelton, the chairman of the Joint 
Chiefs of Staff; Dr. James Schlesinger, the former Secretary of Defense 
and Energy; and General John Shalikashvili, former Chairman of the 
Joint Chiefs. Again, their testimony was very illuminating. I wonder 
how many of my colleagues, outside of the Armed Services Committee, and 
Mr. Biden, had the opportunity to follow that hearing--which lasted 
almost five hours--given the crush of other important business on the 
Senate floor?
  My coilleagues simply haven't had the opportunity to do it, other 
than those of us on the Armed Services Committee.
  I wonder how many of my colleagues have had an opportunity, since the 
vote on the CTBT was scheduled last week, to analyze, question, and 
digest the testimony and the opinions of the distinguished officials 
that the Committee heard from yesterday? I wonder, for example, how 
many of my colleagues heard from Secretary Cohen that a new National 
Intelligence Estimate that will have a major bearing on the 
consideration of this Treaty is due to be completed early next year? It 
is my judgment that the Senate should have that assessment in hand 
before it considers imposing a permanent ban--a permanent ban--on 
nuclear testing.
  The Armed Services Committee held its third, and I believe final, 
hearing on the CTBT this morning. The witnesses included Energy 
Secretary Bill Richardson, as well as the current directors of the 
nuclear weapons laboratories, and a selection of arms control experts, 
including a former director of one of the labs. Again, it was an 
extraordinarily informative hearing.
  I was there for most of it. Unfortunately, I was scheduled to go 
elsewhere near the close of the hearing. But it was an extraordinarily 
informative hearing. The laboratory directors were candid and 
forthcoming in their observations. They raised a number of important 
issues. I wonder how many of our colleagues here, outside the 
membership of the Armed Services Committee, heard those.
  I have attended every hearing and every briefing available this week 
in order to prepare myself for tomorrow's debate. But I did not prepare 
myself before this agreement was entered into. When the agreement came 
to my office and I objected and found that I objected too late, then I 
bestirred myself to learn more about this treaty. I have listened to 
witnesses, and I have questioned witnesses. I still have many 
questions--more now than when I started.
  I wonder how many of my colleagues--particularly those who have not 
had the same entree that members of the Senate Armed Services Committee 
have had to this week's hearings--have questions about this treaty. 
With the exception of Senator Biden--and, incidentally, Senator Biden 
is very knowledgeable about the treaty. He has studied it thoroughly 
and is very conversant with the details of the treaty. Perhaps some of 
the other members of the Foreign Relations Committee have done 
likewise. But other than that committee and the Committee on Armed 
Services, I daresay that few Senators have had an opportunity to engage 
themselves in a study of the treaty and even fewer, perhaps, have had 
the opportunity to hear witnesses and to question those witnesses.
  But, with the exception of Senator Biden, not even the members of the 
Senate Foreign Relations Committee have had the opportunity to hear and 
question the witnesses who appeared before the Armed Services Committee 
this week. I wonder how many of my colleagues will participate in the 
debate tomorrow and how many will participate in the debate next 
Tuesday. These days are bookends around the holiday weekend when no 
votes are scheduled after this evening until 5:30 p.m. Tuesday at the 
earliest. I am confident that many Senators have important commitments 
in their home States that may conflict with this debate. Does anyone in 
this Chamber seriously believe we can give the Comprehensive Test Ban 
Treaty the consideration it deserves in the amount of time that has 
been set aside to debate it?
  Beyond the question of time, Mr. President, is an even more 
disturbing question: The propriety of considering a major treaty under 
the straitjacket of procedural constraints in which only two 
amendments, one by each leader, will be in order. I have questions 
since I have read this treaty. I have reservations. Perhaps they will 
be put to rest by the debate. Or, it may be, as I continue to study the 
treaty and listen to the debate, that I would want to offer an 
amendment myself. I might want to offer an understanding or a 
condition.
  I might want to offer a reservation. I have done so on other 
treaties. It may be that some of my colleagues would wish to do 
likewise. We do not have that opportunity under this unanimous-consent 
agreement, with the exception of our two fine leaders. I know that they 
will go the extra mile, as they always do, to accommodate the concerns 
of the Members. But they, too, are in a cul-de-sac--only one way in, 
one way out. They are limited to one amendment each. Without exception, 
the other 98 Members of the Senate are effectively shut out from 
expressing, in any meaningful and binding way, reservations or concerns 
about this treaty.
  Mr. President, that is not the way to conduct the business of 
weighing a resolution dealing with the supreme law of the land. We 
might do that on an agriculture bill. We might do it on a bill making 
appropriations for the Department of the Interior. But this is a treaty 
we are talking about. A law can be repealed a year later but not a 
treaty.
  For the good of the Nation, this unanimous consent agreement ought to 
be abandoned, and there are ways to do it. It is a unanimous-consent 
agreement, I understand that, and ordinarily a unanimous-consent 
agreement can only be vitiated by unanimous-consent, or it can be 
modified by unanimous consent. But there are ways to avoid this vote. I 
urge my colleagues to put politics aside in this instance, at least, 
and to seek a consensus position on considering a comprehensive test 
ban treaty that upholds the dignity of the United States Senate and 
accords the right to United States Senators to debate and to amend.
  One need only read Madison's notes concerning the debates at the 
Convention to understand the importance of treaties in the minds of the 
framers.

[[Page S12178]]

 We are talking here not about an appropriations bill; we are not 
talking about a simple authorization bill; we are talking about 
something that affects the checks and balances, the separation of 
powers that constitutes the cornerstone of our constitutional system in 
this Republic. This is one of those checks and balances; this involves 
the separation of powers. The Senate, under the Constitution, has a 
voice in the approval of treaties. The President makes the treaty, by 
and with the consent of the United States Senate.

  I was here when we considered the Test Ban Treaty of 1963. I was on 
the Armed Services Committee at that time. I listened to Dr. Edward 
Teller, an eminent scientist who opposed that treaty. I voted against 
that treaty in 1963. I opposed it largely on the basis of the testimony 
of Dr. Edward Teller.
  We need to listen to the scientists. We need to listen to others in 
order that we might make an appropriate judgment. Who knows how this 
will affect the security interests of the United States in the future. 
This is a permanent treaty. It is in perpetuity, so it is not similar 
to a bill. As I say, we can repeal a law. But not this treaty. This 
treaty is in perpetuity--permanent. Maybe that is all right, but we 
need more time to study and consider it.
  We are told that the polls show the people of the Nation are 
overwhelmingly in favor of this treaty. I can trust the judgment of the 
people generally, but the people have not had the opportunity to study 
the fine print in this treaty. Most Senators have not. This is not a 
responsibility of the House of Representatives. This is the 
responsibility solely of the Senate under the Constitution of the 
United States. It is a great burden, a great responsibility, a very 
high duty, and we must know what we are doing.
  I have heard dire warnings as to what a rejection of the treaty might 
mean. One way to have it rejected fast, I am afraid, is to go through 
with this vote. But then how can we make up for it if we find we have 
made a mistake? If we find that we are wrong, it may be too late then. 
We had better stop, look, and listen and understand where we are going. 
We need more hearings.
  I hope we will put politics aside in this instance and seek a 
consensus position on considering a comprehensive test ban treaty that 
upholds the dignity of the United States Senate. I am an 
institutionalist. I have an institutional memory. I have been in this 
body for 41 years, and I have taken its rules seriously. I believe the 
framers knew what they were doing when they vested the responsibility 
in the Senate to approve or to reject treaties. We ought not take that 
responsibility lightly. The very idea of the unanimous-consent request 
says Senators cannot offer reservations; they cannot offer conditions; 
they cannot offer amendments; they cannot offer understandings.
  Let us so act that we reflect the importance of the treaty. Reject it 
if you will or approve it if you will, but let's do it with our eyes 
open. Let's not put on blinders. Let's not bind our hands and feet and 
mouths and ears and minds with a unanimous-consent agreement that will 
not allow unfettered debate or amendments.
  Let the Senate be the institution the framers intended it to be.
  I have not said how I shall vote on the treaty. I want to understand 
more about it. But I want other Senators to have an opportunity to 
understand it as well.
  Mr. President, I thank Senators for listening, and for their patience 
in indulging these remarks.
  I yield the floor.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER (Mr. Allard). The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, first let me commend the distinguished 
Senator from West Virginia for those very thoughtful remarks on the 
Comprehensive Test Ban Treaty.
  I share his concern about the timing of the vote. I think the Senate 
is not yet ready to vote. My view is that there should have been 
hearings a long time ago. I attended part of the hearings--closed-door 
hearings--in S-407 on Tuesday of this week. They lasted about 5 hours.
  I concur with the Senator from West Virginia that it is a very 
complex subject. I had studied the matter and had decided to support 
it. But I do think more time is necessary for the Senate as a whole--
not just to have a day of debate on Friday and a day of debate on 
Tuesday and to vote on it. I think the Senate ought to ratify, but only 
after adequate consideration has been given to it. While the United 
States has been criticized for not taking up the treaty, if we were to 
reject it out of hand on what appears to be a partisan vote, it would 
be very disastrous for our foreign policy.
  So I thank the Senator from West Virginia for his customary very 
erudite remarks on the Senate floor.
  Mr. BYRD. I thank the distinguished Senator for his enlightened 
remarks. And, as always, he approaches a matter with an open mind, 
devoid of politics, and with only the interest of doing good, not harm; 
and that is his response in this instance.

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