[Congressional Record Volume 159, Number 29 (Thursday, February 28, 2013)]
[Senate]
[Pages S1026-S1028]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Leahy, Mrs. Boxer, Mr. Brown, 
        Ms. Cantwell, Mr. Cardin, Mr. Durbin, Mr. Franken, Mr. Harkin, 
        Mr. Johnson of South Dakota, Ms. Klobuchar, Mrs. Murray, Mr. 
        Rockefeller, Mr. Sanders, Mr. Udall of New Mexico, Mr. 
        Whitehouse, and Mr. Wyden):
  S. 419. 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 introduce the Cluster 
Munitions Civilian Protection Act of 2013.
  Our legislation places common sense restrictions on the use of 
cluster munitions. It prevents any funds from being spent to use 
cluster munitions that have a failure rate of more than one percent.
  In addition, the rules of engagement must specify 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.
  Our legislation also includes a national security waiver that allows 
the President to waive the prohibition on the use of cluster munitions 
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.
  However, if the President decides to waive the prohibition, he must 
issue a report to Congress within 30 days on the failure rate of the 
cluster munitions used and the steps taken to protect innocent 
civilians.
  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 and armor formations 
spread over a half mile radius.
  But, in reality, they pose a deadly threat to innocent civilians.
  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.
  During the 2006 war in Lebanon, Israeli cluster munitions, many of 
them manufactured in the U.S., injured and killed 343 civilians.
  Sadly, Syria is just the latest example.
  According to Human Rights Watch, the Syrian military has used air-
dropped and ground-based cluster munitions near or in civilian areas.
  In October, residents of Taftanaz and Tamane reported that 
helicopters dropped cluster munitions on or near their towns. One 
resident told Human Rights Watch:

       On October 9, I heard a big explosion followed by several 
     smaller ones coming from Shelakh field located at the north 
     of Taftanaz. We went to see what happened. We saw a big 
     [bomb] cut in half and several [bomblets] that were not 
     detonated. I personally found one that was not exploded. 
     There were small holes in the ground. The holes were 
     dispersed and spread over 300 meters.

  Another resident reported that an air-dropped cluster munitions 
released bomblets that landed between two neighboring schools.
  Last month, Human Rights Watch issued another report that Syrian 
forces used ``notoriously indiscriminate'' ground-based cluster 
munitions near Idlib and Latamenh, a town near Hama.
  Not surprisingly, the residents of these towns also reported that 
many of the bomblets were dispersed over a wide area, failed to 
explode, and killed or maimed innocent civilians.
  One resident of Latamneh told Human Rights Watch:

       I heard a big explosion followed by smaller ones. . . . I 
     saw wounded people everywhere and small bombs covering the 
     streets. The damage caused to the buildings was minimal. I 
     saw a lot of unexploded bomblets.

  One civilian was killed during the attack and 15 more, including 
women and children, were wounded. Another civilian was later killed by 
an unexploded bomblet. One video shows a baby with shrapnel along his 
right arm.
  Videos taken after the incident also show that the civilians who came 
across the munitions were unaware of the deadly power of an unexploded 
bomblet.
  Men, and even children, can be seen handling these weapons as if they 
were toys or simply souvenirs from the war.
  Now, the United States has rightly condemned the Syrian military's 
use of cluster munitions against innocent civilians.
  However, our moral leadership is hampered by the fact that we 
continue to maintain such a large arsenal of these deadly weapons and 
our continued resistance to international efforts to restrict their 
use.
  In fact, the United States maintains an estimated 5.5 million cluster 
munitions containing 728 million submunitions. These bomblets have an 
estimated failure rate of between 5 and 15 percent.
  According to the most recent data, only 30,900 of these 728 million 
submunitions have self-destruct devices that would ensure a less than 
one percent failure rate.
  That accounts for only 0.00004 percent of the U.S. arsenal.
  So, the technology exists for the U.S. to meet the one percent 
standard, but our arsenal still overwhelmingly consists of cluster 
bombs with high failure rates.
  How then, do we convince Syria not to use these deadly weapons?
  While we wait, the international community has taken action.
  On August 1, 2010, the Oslo Convention on Cluster Munitions--which 
would prohibit the production, use, and export of cluster munitions and 
requires signatories to eliminate their arsenals within eight years--
formally came into force. To date, it has been signed by 111 countries 
and ratified by 77 countries.
  This group includes key NATO allies such as Canada, the United 
Kingdom, France, and Germany, who are fighting alongside our troops in 
Afghanistan.
  It includes 33 countries that have produced or used cluster bombs.
  But it does not include the United States.
  The United States chose not to participate in the Oslo process or 
sign the treaty.
  This is unacceptable.
  Instead, the Pentagon continues to assert that cluster munitions are 
``legitimate weapons with clear military utility in combat.''
  Recognizing that the United States could not remain silent in the 
face of widespread international efforts to restrict the use of cluster 
munitions, 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.
  This policy is a step in the right direction, but would still allow 
the Pentagon to use cluster bombs with high failure rates for five more 
years.
  That runs counter to our values. I believe the administration should 
take another look at this policy.
  In fact, on September 29, 2009, Senator Leahy and I were joined by 14 
of our colleagues in sending a letter to President Obama urging him to 
conduct a thorough review of U.S. policy on cluster munitions.
  On April 14, 2010, we received a response from then National Security 
Advisor Jim Jones stating that the administration will undertake this 
review following the policy review on U.S. landmines policy.
  The administration should complete this review without delay.
  Until then, we are still prepared to use these weapons with well-
known failure rates and significant risks to innocent civilians?
  What does that say about us?
  The fact is, cluster munition technologies already exist that meet 
the one percent standard. Why do we need to wait until 2018?
  This delay is especially troubling given that in 2001, former 
Secretary of Defense William Cohen issued his own

[[Page S1027]]

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' policy essentially postpones any meaningful action 
until 2018.
  If we do nothing, 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.
  First, it should be noted that in 2007, Congress passed, and 
President Bush signed into law, the FY 2008 Consolidated Appropriations 
Act, which included a provision that prohibits the sale and transfer of 
cluster bombs with a failure rate of more than one percent.
  That ban has been renewed on an annual basis and remains on the 
books.
  Our legislation simply moves up the Gates policy by five years and 
extends the ban on the sale and transfer of cluster munitions with high 
failure rates to our own arsenal.
  For those of my colleagues who are concerned that it may be too soon 
to enact a ban on the use of cluster munitions with failure rates of 
more than 1 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 munitions in Iraq since 2003 and has observed a moratorium on 
their use in Afghanistan since 2002.
  In conclusion, let me say that Senator Leahy and I remain as 
committed as ever to raising awareness about the threat posed by 
cluster munitions and to pushing the United States to enact common-
sense measures to protect innocent civilians. This body constantly 
talks about America's moral leadership, and this is the perfect 
opportunity to exercise it.
  Senator Leahy and I continue our efforts for people like Phongsavath 
Souliyalat.
  Last year, former Secretary of State Hillary Rodham Clinton traveled 
to Laos and met Phongsavath, a 19-year old Lao man who lost his 
eyesight and his hands to a bomblet just three years before.
  The bomblet that injured Phongsavath was dropped more than 30 years 
ago during the Vietnam War. It lay unexploded, a de facto landmine, 
until his 16th birthday.
  Sadly, he is not alone. The U.S. dropped 270 million bomblets over 
Laos, and 30 percent failed to explode.
  According to an article from the Los Angeles Times, civilians in one-
third of Laos are threatened by unexploded ordinance, and only one 
percent of that area has been cleared.
  Since the Vietnam War, more than 20,000 people have been killed or 
injured by these deadly weapons. All of them were innocent civilians 
that the United States did not intend to target.
  After Phongsavath described the suffering of those who, like him, had 
been injured by unexploded bomblets, Secretary Clinton replied: ``We 
have to do more.''
  I agree wholeheartedly. As a first step, Congress should pass the 
Cluster Munitions Civilian Protection Act of 2013. I urge my colleagues 
to support this important initiative.
  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 2013. It is identical to the bill that she 
and I have introduced in prior years, and I commend her for her 
persistence on this important humanitarian issue.
  I come to this issue having devoted much effort over many years to 
shining a spotlight on and doing what can be done to help innocent 
victims of war. In the last century, and continuing into this new 
century, noncombatants increasingly have borne the brunt of the 
casualties in armed conflicts across the globe. Limiting the use of 
weapons that are inherently indiscriminate, such as landmines, and that 
have indiscriminate effects, such as cluster munitions, are tangible, 
practical, meaningful things we can do to reduce these unnecessary 
casualties.
  Cluster munitions, like any weapon, have some military utility. But 
anyone who has seen the indiscriminate devastation that cluster 
munitions cause over wide areas understands the unacceptable threat 
they pose to noncombatants. These are not the laser guided weapons the 
Pentagon showed destroying their targets during the invasion of 
Baghdad. To the contrary. Cluster munitions can kill and maim anyone 
within the 360 degree range of flying shrapnel.
  There is the horrific 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.
  Even now, in Laos today people are still being killed and maimed by 
millions of U.S. cluster munitions left from the 1970s. That legacy, 
resulting from years of secret bombing of a peaceful, agrarian people 
who posed no threat to the United States, contaminated more than a 
third of Laos' agricultural land and cost countless innocent lives. It 
is shameful that we have contributed less in the past 35 years to clean 
up these deadly remnants of war than we spent in a few days of bombing.
  Current law prohibits U.S. sales, exports and transfers of cluster 
munitions that have a failure rate exceeding 1 percent. The law also 
requires any sale, export or transfer agreement to include a 
requirement that the cluster munitions will be used only against 
military targets.
  The Pentagon continues to insist that the United States should retain 
the ability to use millions of cluster munitions in its arsenal which 
have estimated failure rates of 5 to 20 percent. It has pledged to meet 
the 1 percent failure rate for U.S. use of cluster munitions in 2018.
  Like Senator Feinstein I reject the notion that the United States can 
justify using antiquated weapons that so often fail, so often kill and 
injure innocent people including children, and which many of our allies 
have renounced. That is not the kind of leadership the world needs and 
expects from the United States. If we have learned anything from 
Afghanistan it is that harming civilians, even unintentionally, creates 
enemies among those whose support we need, and undermines the mission 
of our troops.
  Senator Feinstein's and my bill would apply the 1 percent failure 
rate to U.S. use of cluster munitions beginning on the date of 
enactment. However, our bill permits the President to waive the 1 
percent requirement if the President certifies that it is vital to 
protect the security of the United States. I would hope the Pentagon 
would recognize that this is in its best interest, and will work with 
us by supporting this reasonable step.
  Since December 3, 2008, when the Convention on Cluster Munitions 
opened for signature in Dublin, at least 111 countries have signed the 
treaty including Great Britain, Germany, Canada, Norway, Australia and 
other allies of the United States. However, the Bush Administration did 
not participate in the negotiations that culminated in the treaty, and 
the Obama Administration has not signed it.
  Some have 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 United States 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 United States today has the 
technological ability to produce cluster munitions that meet the 
requirements of our bill, as well as of the treaty. What is lacking is 
the political will to act. There is no excuse for continuing to use 
cluster munitions that cause unacceptable harm to civilians.
  I urge the Obama administration to review its policy on cluster 
munitions and put the United States on a path to

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join the treaty as soon as possible. In the meantime, our legislation 
would be an important step in the right direction.
  I want again to thank and commend Senator Feinstein, who has shown 
such passion and steadfastness in raising this issue and seeking every 
opportunity to protect civilians from these indiscriminate weapons.
                                 ______