[Congressional Record Volume 155, Number 28 (Wednesday, February 11, 2009)]
[Senate]
[Pages S2153-S2155]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Leahy, Mr. Bingaman, Mrs. 
        Boxer, Mr. Brown, Mr. Cardin, Mr. Casey, Mr. Durbin, Mr. 
        Feingold, Mr. Kennedy, Ms. Mikulski, Mr. Menendez, Mr. Merkley, 
        Mr. Sanders, Ms. Stabenow, and Mr. Whitehouse):
  S. 416. A bill to limit the use of cluster munitions; to the 
Committee on Foreign Relations.
  Mrs. FEINSTEIN. Mr. President, I rise today with my friend and 
colleague from Vermont, Senator Leahy, to re-introduce the Cluster 
Munitions Civilian Protection Act.
  The bill is also co-sponsored by Senators Bingaman, Boxer, Brown, 
Cardin, Casey, Durbin, Feingold, Kennedy, Mikulski, Menendez, Merkley, 
Sanders, Stabenow, and Whitehouse.
  Our legislation places common sense restrictions on the use of 
cluster bombs. It prevents any funds from being spent to use cluster 
munitions that have a failure rate of more than one percent; and unless 
the rules of engagement specify: the cluster munitions will only be 
used against clearly defined military targets and; will not be used 
where civilians are known to be present or in areas normally inhabited 
by civilians.
  The bill also requires the President to submit a report to the 
appropriate Congressional committees on the plan to clean up unexploded 
cluster bombs.
  Finally, the bill includes a national security waiver that allows the 
President to waive the prohibition on the use of cluster bombs with a 
failure rate of more than one percent, if he determines it is vital to 
protect the security of the United States to do so.
  Cluster munitions are large bombs, rockets, or artillery shells that 
contain up to hundreds of small submunitions, or individual 
``bomblets.''
  They are intended for attacking enemy troop formations and armor 
covering over a half mile radius.
  Yet, in practice, they pose a real threat to the safety of civilians 
when used in populated areas because they leave hundreds of unexploded 
bombs over a very large area and they are often inaccurate.
  Indeed, the human toll of these weapons has been terrible:
  In Laos, approximately 11,000 people, 30 percent of them children, 
have been killed or injured by U.S. cluster munitions since the Vietnam 
War ended.
  In Afghanistan, between October 2001 and November 2002, 127 civilians 
lost their lives due to cluster munitions, 70 percent of them under the 
age of 18.
  An estimated 1,220 Kuwaitis and 400 Iraqi civilians have been killed 
by cluster munitions since 1991.
  In the 2006 war in Lebanon, Israeli cluster munitions, many of them 
manufactured in the U.S., injured and killed 200 civilians.
  During the 2003 invasion of Baghdad, the last time the U.S. used 
cluster munitions, these weapons killed more civilians than any other 
type of U.S. weapon.
  The U.S. 3rd Infantry Division described cluster munitions as 
``battlefield losers'' in Iraq, because they were often forced to 
advance through areas contaminated with unexploded duds.
  During the 1991 Gulf War, U.S. cluster munitions caused more U.S. 
troop casualties than any single Iraqi weapon system, killing 22 U.S. 
servicemen.

[[Page S2154]]

  Yet we have seen significant progress in the effort to protect 
innocent civilians from these deadly weapons since we first introduced 
this legislation in the 110th Congress.
  In December, 95 countries came together to sign the Oslo Convention 
on Cluster Munitions which would prohibit the production, use, and 
export of cluster bombs and requires signatories to eliminate their 
arsenals within 8 years.
  This group includes key NATO allies such as Canada, the United 
Kingdom, France, and Germany, who are fighting alongside our troops in 
Afghanistan.
  In 2007, Congress passed and President Bush signed into law a 
provision from our legislation contained in the fiscal year 2008 
Consolidated Appropriations Act prohibiting the sale and transfer of 
cluster bombs with a failure rate of more than one percent.
  In addition, the Senate Appropriations Committee approved the fiscal 
year 2009 State, Foreign Operations and Related Programs Appropriations 
bill renewing the ban for another year.
  I am confident this ban will be included in an fiscal year 2009 
Omnibus appropriations bill.
  These actions will help save lives. But much more work remains to be 
done and significant obstacles remain.
  For one, the United States chose not to participate in the Oslo 
process or sign the treaty.
  The Pentagon continues to believe that cluster munitions are 
``legitimate weapons with clear military utility in combat.'' It would 
prefer that the United States work within the Geneva-based Convention 
on Certain Conventional Weapons, CCW, to negotiate limits on the use of 
cluster munitions.
  Yet these efforts have been going on since 2001 and it was the 
inability of the CCW to come to any meaningful agreement which prompted 
other countries, led by Norway, to pursue an alternative treaty through 
the Oslo process.
  A lack of U.S. leadership in this area has given cover to other major 
cluster munitions producing nations--China, Russia, India, Pakistan, 
Israel, and Egypt--who have refused to sign the Oslo Convention as 
well.
  Recognizing the United States could not remain silent in the face of 
international efforts to restrict the use of cluster bombs, Secretary 
of Defense Robert Gates issued a new policy on cluster munitions in 
June 2008 stating that after 2018, the use, sale and transfer of 
cluster munitions with a failure rate of more than 1 percent would be 
prohibited.
  The policy is a step in the right direction, but under the terms of 
this new policy, the Pentagon will still have the authority to use 
cluster bombs with high failure rates for the next ten years.
  That is unacceptable and runs counter to our values.
  The United States maintains an arsenal of an estimated 5.5 million 
cluster munitions containing 728 million submunitions which have an 
estimated failure rate of between 5 and 15 percent.
  What does that say about us, that we are still prepared to use, sell 
and transfer these weapons with well known failure rates?
  The fact is, cluster munition technologies already exist, that meet 
the one percent standard. Why do we need to wait ten years?
  This delay is especially troubling given that in 2001, former 
Secretary of Defense William Cohen issued his own policy on cluster 
munitions stating that, beginning in fiscal year 2005, all new cluster 
munitions must have a failure rate of less than one percent.
  Unfortunately, the Pentagon was unable to meet this deadline and 
Secretary Gates' new policy essentially postpones any meaningful action 
for another ten years.
  That means, if we do nothing, by 2018 close to twenty years will have 
passed since the Pentagon first recognized the threat these deadly 
weapons pose to innocent civilians.
  We can do better.
  Our legislation simply moves up the Gates policy by ten years. For 
those of my colleagues who are concerned that it may be too soon to 
enact a ban on the use of cluster bombs with failure rates of more than 
one percent, I point out again that our bill allows the President to 
waive this restriction if he determines it is vital to protect the 
security of the United States to do so.
  I would also remind my colleagues that the United States has not used 
cluster bombs in Iraq since 2003 and has observed a moratorium on their 
use in Afghanistan since 2002.
  We introduced this legislation to make this moratorium permanent for 
the entire U.S. arsenal of cluster munitions.
  We introduced this legislation for children like Hassan Hammade.
  A 13-year-old Lebanese boy, Hassan lost four fingers and sustained 
injuries to his stomach and shoulder after he picked up an unexploded 
cluster bomb in front of an orange tree.
  He said:

       I started playing with it and it blew up. I didn't know it 
     was a cluster bomb--it just looked like a burned out piece of 
     metal.
       All the children are too scared to go out now, we just play 
     on the main roads or in our homes.

  I urge my colleagues to support this legislation. We should do 
whatever we can to protect more innocent children and other civilians 
from these dangerous weapons.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                 S. 416

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Cluster Munitions Civilian 
     Protection Act of 2009''.

     SEC. 2. LIMITATION ON THE USE OF CLUSTER MUNITIONS.

       No funds appropriated or otherwise available to any Federal 
     department or agency may be obligated or expended to use any 
     cluster munitions unless--
       (1) the submunitions of the cluster munitions, after 
     arming, do not result in more than 1 percent unexploded 
     ordnance across the range of intended operational 
     environments; and
       (2) the policy applicable to the use of such cluster 
     munitions specifies that the cluster munitions will only be 
     used against clearly defined military targets and will not be 
     used where civilians are known to be present or in areas 
     normally inhabited by civilians.

     SEC. 3. PRESIDENTIAL WAIVER.

       The President may waive the requirement under section 2(1) 
     if, prior to the use of cluster munitions, the President--
       (1) certifies that it is vital to protect the security of 
     the United States; and
       (2) not later than 30 days after making such certification, 
     submits to the appropriate congressional committees a report, 
     in classified form if necessary, describing in detail--
       (A) the steps that will be taken to protect civilians; and
       (B) the failure rate of the cluster munitions that will be 
     used and whether such munitions are fitted with self-destruct 
     or self-deactivation devices.

     SEC. 4. CLEANUP PLAN.

       Not later than 90 days after any cluster munitions are used 
     by a Federal department or agency, the President shall submit 
     to the appropriate congressional committees a plan, prepared 
     by such Federal department or agency, for cleaning up any 
     such cluster munitions and submunitions which fail to explode 
     and continue to pose a hazard to civilians.

     SEC. 5. APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.

       In this Act, the term ``appropriate congressional 
     committees'' means the Committee on Foreign Relations, the 
     Committee on Armed Services, and the Committee on 
     Appropriations of the Senate and the Committee on Foreign 
     Affairs, the Committee on Armed Services, and the Committee 
     on Appropriations of the House of Representatives.

  Mr. LEAHY. Mr. President, I am pleased to join with my friend from 
California, Senator Feinstein, in introducing the Cluster Munitions 
Civilian Protection Act of 2009. This is a slightly revised version of 
a bill of the same name which we introduced in 2007.
  Since December 3, 2008, when the Convention on Cluster Munitions 
opened for signature in Dublin, 96 countries have signed the treaty 
including Great Britain, Germany, Canada, Norway, Australia and other 
allies of the United States.
  The treaty is the culmination of a year of negotiations, launched by 
Norway, among 107 governments that came together to prohibit the use of 
cluster munitions that cause unacceptable harm to civilians.
  The Bush administration did not participate in the negotiations, 
which I believe was a mistake. As the Nation with the world's most 
powerful military we should not be on the sidelines while others are 
trying to protect the

[[Page S2155]]

lives and limbs of civilians who comprise the vast majority of war 
casualties today.
  The Pentagon continues to insist that cluster munitions have military 
utility, and that the U.S. should retain the ability to use millions of 
cluster munitions in its arsenal which have estimated failure rates of 
5 to 20 percent.
  Of course, any weapon, whether cluster munitions, landmines, or even 
poison gas, has some military utility. But anyone who has seen the 
indiscriminate devastation cluster munitions cause over a wide area 
understands the unacceptable threat they can pose to civilians. These 
are not the laser guided weapons the Pentagon showed destroying their 
targets during the invasion of Baghdad.
  There is the insidious problem of cluster munitions that fail to 
explode as designed and remain as active duds, like landmines, until 
they are triggered by whoever comes into contact with them. Often it is 
an unsuspecting child, or a farmer. We saw that recently in Lebanon, 
and in Laos people are still being killed and maimed by U.S. cluster 
munitions left from the Vietnam War.
  Current law prohibits U.S. sales, exports and transfers of cluster 
munitions that have a failure rate exceeding 1 percent. That law also 
requires any sale, export or transfer agreement to include a 
requirement that the cluster munitions will be used only against 
military targets and not in areas where civilians are known to be 
present.
  Last year, the Pentagon announced that it would meet the failure rate 
requirement for U.S. use of cluster munitions in 2018. While a step 
forward, I do not believe we can justify continuing to use weapons that 
so often fail, so often kill and injure civilians, and which many of 
our allies have renounced. That is not the kind of leadership the world 
needs and expects from the United States.
  Senator Feinstein's and my bill would apply similar restrictions to 
the use of cluster munitions beginning immediately on the date of 
enactment. However, the bill does permit the President to waive the 1 
percent requirement if he certifies that it is vital to protect the 
security of the United States. I urge the Pentagon to work with us by 
supporting this reasonable step.
  I want to express my appreciation to all nations that have signed the 
treaty, and urge the Obama administration to review its policy on 
cluster munitions with a view toward putting the U.S. on a path to join 
the treaty as soon as possible. In the meantime, our legislation would 
go a long way toward putting the United States on that path.
  There are some who dismissed the Cluster Munitions Convention as a 
pointless exercise, since it does not yet have the support of the 
United States and other major powers such as Russia, China, Pakistan, 
India, and Israel. These are some of the same critics of the Ottawa 
treaty banning antipersonnel landmines, which the U.S. and the other 
countries I named have also refused to sign. But that treaty has 
dramatically reduced the number of landmines produced, used, sold and 
stockpiled, and the number of mine victims has fallen sharply. Any 
government that contemplates using landmines today does so knowing that 
it will be condemned by the international community. I suspect it is 
only a matter of time before the same is true for cluster munitions.
  It is important to note that the U.S. today has the technological 
ability to produce cluster munitions that would not be prohibited by 
the treaty. What is lacking is the political will to expend the 
necessary resources. There is no other excuse for continuing to use 
cluster munitions that cause unacceptable harm to civilians. I am 
committed to working in the Defense Appropriations Subcommittee to help 
secure the resources needed to make this new technology available.
  I want to commend Senator Feinstein who has shown real passion and 
persistence in raising this issue and seeking every opportunity to 
protect civilians from these indiscriminate weapons.
                                 ______