CHEMICAL WEAPONS CONVENTION

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TUESDAY, APRIL 15, 1997

U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:03 p.m., in
room SD-419, Dirksen Senate Office Building, Hon. Jesse Helms
(chairman of the committee) presiding.
Present: Senators Helms, Hagel, Brownback, Biden, and
Kerry.
The Chairman. The Committee will come to order, but we will
stand relaxed until the staff gets its act together. Both
parties are represented at another hearing, and it should not
be very long. [Pause.]
There is no Senate rule against a chairman doing what they
do on television when they have got more time left than they
expected. So they stretch it out.
Our first witness this afternoon will be a long time friend
of so many of us in the Senate. We have worked with him in
various capacities, including broadcasting to foreign
countries. Malcolm S. Forbes, Jr., or Steve as he is known, is
one of the most remarkable friends I have ever known; and I am
going to give you one vignette for the record.
Some years ago I happened to be on the same campus with him
where he had spoken to the students, and following all of the
formal doings there was a reception, and the reception went on
and on and on, and he was shaking hands and answering of the
students, and along about 10 or maybe a little bit earlier I
sent word to Mr. Forbes that I would rescue him and he could go
out a certain door, get on his airplane, and go back to New
York. He said oh, no. He said, I have got some more friends I
wish to talk with.
Now, he was not a candidate for anything except the Kingdom
of Heaven, I think, at that time. But I want to say to you,
sir, that you won the hearts of those young people at that
university. I still hear about your staying there until 11
talking with them and answering questions. Maybe another fellow
would have gotten up and left, but you did not.
Mr. Biden, the ranking member of the committee, will be
here momentarily, and we will just bide our time.
We will have two panels, by the way. Steve Forbes, or
Malcolm S. Forbes, Jr., will be the first witness and only
witness on panel one. Panel two will have businessmen: Mr.
Wayne Spears, President of the Spears Manufacturing Company and
so forth; Mr. Ralph V. Johnson, Vice President of Environmental
Affairs at Dixie Chemical Company; Mr. Kevin L. Kearns,
President of the United States Business and Industrial Council;
the Honorable Kathleen C. Bailey, Senior Fellow of the Lawrence
Livermore National Laboratory, Livermore, California.
This hearing is the third in the final round of Senate
Foreign Relations Committee hearings on the dangerously flawed
Chemical Weapons Convention. Last week the committee heard from
seven distinguished foreign and defense policy leaders about
the national security implications of this treaty. This
afternoon, our purpose is to discuss the destructive effects of
this treaty, and what those effects will have on the American
business community, the new regulations will be imposed, the
intrusive and clearly unconstitutional inspections it will
authorize, and the potential of abuse of the treaty by our
foreign business competitors by industrial espionage.
I can think of no one--no one--who can better speak to
these issues than our lead witness today, Mr. Forbes. He is
chairman and CEO of Forbes Magazine. He is a leading voice of
American business, and in particular a champion of the small
and medium-sized enterprises that will be disproportionately
affected by this treaty.
Last week we heard eloquent testimony from four former
secretaries of defense of this country urging the Senate to
reject this flawed treaty, and I want to quote something one of
those witnesses said that day, because I think it will help us
frame the discussion this afternoon.
Let me preface what I am going to read by saying that there
have been repeated suggestions by the proponents of the treaty
implying that all businesses support this treaty. Well, this
simply is not accurate. Don Rumsfeld eloquently reminded us
last week that many big businesses, and he stressed the word
big, do support the treaty, but it is not the security of big
business that we need to worry about in this country, it is the
smaller businesses.
Here is what Don Rumsfeld said: Big companies seem to get
along fine with big government. They get along with American
government, they get along with foreign governments, they get
along with international organizations, and they have the
ability, with all their Washington representatives, to deal
effectively with bureaucracies. Indeed, Mr. Rumsfeld said, and
I am quoting him still, indeed, that capability on the part of
the big companies actually serves as a sort of barrier to entry
to small and medium-sized companies that lack that capability.
So I do not suggest, he said, for 1 minute that large American
companies are not going to be able to cope with the
regulations. They will do it a whale of a lot better than small
and medium sized companies, end of quote.
Mr. Rumsfeld made a vitally important point. It is small
and medium-sized businesses, the entrepreneurs who are creating
all of the jobs in our economy today, who will be hurt worse by
this treaty. It is they who will have trouble coping with all
of the new regulations and all of the red tape and all of the
intrusive and unconstitutional inspections and all of the legal
fees and potential losses of proprietary information.
The small businesses are the ones whose constitutional
rights will be trampled because this administration refuses to
require a criminal search warrant from involuntary challenge
inspections granted to foreign inspectors. These inspections
will be granted greater power of search and seizure than those
granted to U.S. Law enforcement officers. These inspectors are
the ones who may well confront officials from Iran and China,
knocking on their doors, demanding the right to rifle their
records and so forth and so on.
Speaking of the law enforcement officers, they will
interrogate the employees and remove chemical samples from
their facilities, all because this administration has refused
to ban inspectors from rogue regimes.
Now, we hear over and over again that the Chemical
Manufacturer's Association, which has been very active in
promoting the treaty, we heard that they support the treaty,
and we have had, certainly, the strong inferences, if not
declarations. But let me tell you something about this
association. And I speak as a guy who ran a pretty sizable
association some years ago. The CMA operates and represents
just 191 companies--1-9-1--but this treaty, at the
administration's most conservative estimate, will affect at
least 3,000 businesses, and may affect as many as 8,000.
So I hope we can put an end to the notion that the CMA
represents the interests of the thousands of small- and medium-
sized companies that will be hurt by this treaty. And as one of
our witnesses will tell us today, I believe, even within the
ranks of the CMA companies there is concern about the impact of
this treaty, including the cost of regulations and the
potential loss of confidential business information.
The fact is there are literally thousands of companies
across this country who do not know about this treaty, who do
not understand it in any detail, who do not realize that it
will affect them, who do not understand that they will be
subjected to inspections, and are not aware what kind of
unfunded mandates will be imposed on them should this treaty be
ratified as is.
Now, I have no doubt that the businessmen affected by the
CWC are patriotic Americans who love their country and are
willing to make sacrifices for our national security. And if
this treaty could actually reduce the danger of chemical
weapons, I am sure they would be willing to make necessary
sacrifices to get rid of those terrible weapons. But as we have
heard from so many experts, it just will not work.
This treaty will not work. It will do nothing to reduce the
danger of chemical weapons. If anything, we have learned that
it will make the problem worse by giving rogue nations even
greater access to dangerous chemical agents and technology and
defensive gear. Even the treaty's proponents admit that it will
not work, but they say we should ratify it anyhow; because it
is better than nothing; because, they say, it will establish
``norms.''
Well, I do not believe that ratifying the treaty that
cannot work just to make a statement is good policy; and when
you take into consideration the fact that it will also create
massive new burdens on businesses that are struggling to create
jobs, that it will cost them money, time, and energy while
trampling on their constitutional rights just to make a
statement and establish norms, I say that this treaty is worse
than nothing. The price of that kind of feel-good statement is
just too high.
So, Mr. Forbes, if you will take the seat in the middle, we
thank you for being here, and look forward to your testimony.
And I note that not only is Steve Forbes testifying today, he
announced this Sunday on Face the Nation that he will be
leading a public information campaign to bring the facts about
the treaty to light. So on behalf of the silent majority of
American businesses who do not realize what Washington has
cooked up for them with this dangerous and destructive treaty,
I thank you, sir, for all that you are doing.
I have just been handed a note saying that we should wait
for Senator Biden to come and make his statement. He said he
would try to be here by 2:15, so I suppose, Mr. Forbes, we can
just stand at rest and wait for Senator Biden. [Pause.]
The Senator from Delaware is recognized.
Senator Biden. Mr. Chairman, thank you very, very much, and
I thank the witnesses. We have, as the Chairman well knows,
these things every Tuesday called caucuses where every Member
of each of our parties gets together and we discuss our
respective agendas. Ironically, I was to make a presentation in
my caucus today on the Chemical Weapons Convention, and I
appreciate the Chair doing this.
Mr. Chairman, I am happy you have called this hearing today
on the effect that the CWC would have on American business;
because, as we all know, there has been a great deal of
discussion pro and con on that very point. The charge, in my
view, that the CWC will harm American business, I think is dead
wrong when one considers the fact that the convention was
negotiated with an unprecedented input from the U.S. chemical
industry. Thanks to the industry's help, in my view, the
convention contains thresholds and exemptions that protect
businesses small and large from bearing an undue burden.
The American chemical industry has helped develop the
ground rules under which the inspections that will occur under
this treaty will happen, including provisions for protecting
the confidentiality of business information. Chemical
companies' representatives have also helped in the decision on
how to design the form, the written form, that represents the
only reporting obligation for 90 percent of approximately 2,000
companies that will have an obligation under this convention.
The U.S. chemical companies recognize that while they
produce goods intended for peaceful uses, their products and
inputs could be misused for nefarious purposes. That is why
they so actively have supported this convention. Their
involvement in the CWC has been a model, in my view, of good
corporate citizenship. Unfortunately, we will reward this
responsible behavior with a slap in the face, in my view, if we
fail to ratify this convention and subject the U.S. Chemical
industry to international sanctions, the same sanctions, I
might add, that we ourselves insisted be placed in this
convention under both President Reagan and President Bush.
The CWC was designed with high thresholds for common
industrial chemicals that ensure that only large producers of
those chemicals will be subject to reporting and inspection
requirements. Instead of throwing around old numbers and scare
tactics, I would like to take a look very quickly at the outset
here at the real requirements of this treaty.
Chemicals that are used to make chemical weapons have been
placed in three schedules. Schedule I chemicals are those that
are chemical weapons and direct precursors with little or no
commercial use. Schedule II chemicals are direct precursors
with limited commercial uses. And Schedule III chemicals are
indirect precursors with wide commercial use.
Now, both producers and consumers of chemicals on Schedule
I and two are subject to CWC reporting and inspection
requirements. For most Schedule II chemicals, though, there is
a one-ton threshold. As a result, only 11 American facilities--
11, 11 American facilities--will be subject to Schedule I
requirements, and less than 35 will be covered by Schedule II
requirements.
Turning to Schedule III chemicals, the rules change a
little. Only those facilities that produce, import, or export
more than 30 tons of Schedule III chemicals are covered by
those requirements--30 tons. That is not a vial of chemicals,
that is not a barrel, that is a lot of chemicals, and these
rules apply only to producers. Consumers of these chemicals are
not covered. As a result, only about 100 facilities face these
requirements. An even higher threshold applies to producers of
discrete organic chemicals. Everybody has an acronym in this
bill, so I will just continue to call them discrete organic
chemicals, or DOC's.
Facilities that produce more than 200 tons of discrete
organic chemicals are subject to reporting requirements, as are
those that produce 30 tons of chemicals containing phosphorus,
sulfur, or fluorine. But again, we are talking about producers,
and only producers of hundreds of tons of these chemicals--no
soap manufacturers, no cosmetic firms, all the things we keep
hearing about. You know: ``They are going to go in and find a
cosmetic firm is doing this or a soap manufacturer.'' We are
not talking about those companies. They are not producers of
these chemicals. They are consumers of these chemicals, these
discrete organic chemicals.
While reporting requirements for discrete organic chemicals
will apply to as many as 1,800 U.S. companies, I do not know of
too many Mom and Pop businesses that produce 200 tons of
chemicals a year. In addition, several industries have been
completely exempted from all CWC requirements. These include
explosives makers, hydrocarbon producers, oil refineries,
polymer makers, and facilities that make discrete organic
chemicals through biological processes. What does this mean? It
means that plastic companies, textile makers, and breweries
face zero--zero--obligation under the CWC.
The Commerce Department instructions for the brief data
declaration says that in black and white. And the Conference of
State Parties is also set to ratify these exemptions on May the
6th. So anyone who tells you differently, I would respectfully
suggest, is dead wrong.
There is more to say, and I had planned on saying more, but
I ask unanimous consent that the remainder of my statement be
placed in my record, Mr. Chairman, and I would conclude with
one sentence: We are going to hear from four very distinguished
witnesses, one who believes that--well, I was going to read the
quote. I will not. Anyway, let me just put my whole statement
in the record since you were so kind to hold up for me, and I
will get on with hearing from the witnesses.
The Chairman. Without objection, it is so ordered.
[The prepared statement of Senator Biden follows:]

Prepared Statement of Senator Biden

Thank you, Mr. Chairman. I am happy that we are holding this
hearing today on the effect the CWC would have on American business,
because perhaps no single aspect of this debate has seen more
misinformation.
The charge that the CWC will harm American business appears
preposterous when one considers the fact that the convention was
negotiated with the unprecedented input of the U.S. chemical industry.
Thanks to the industry's help, the convention contains thresholds
and exemptions that protect businesses, small and large alike, from
bearing an undue burden. The American chemical industry helped develop
the ground rules under which inspections will occur, including
provisions for protecting confidential business information.
Chemical company representatives also helped design the brief form
that represents the only reporting obligation for ninety percent of the
approximately two thousand companies that will have obligations under
the CWC.
U.S. chemical companies recognize that while they produce goods
intended for peaceful uses, their products and inputs could be misused
for nefarious purposes. That is why they so actively have supported
this convention. Their involvement in the CWC has been a model of good
corporate citizenship.
Unfortunately, we will reward this responsible behavior with a slap
in the face if we fail to ratify the CWC and subject the U.S. chemical
industry to international sanctions--the same international sanctions
that we ourselves insisted be placed in this treaty to punish countries
that do not ratify it.
The CWC was designed with high thresholds for common industrial
chemicals that ensure that only large producers of these chemicals will
be subject to reporting and inspection requirements. Instead of
throwing around old numbers and scare tactics, let's look at what the
real requirements of this treaty are.
Chemicals that can be used to make chemical weapons have been
placed on three schedules. Schedule I chemicals are chemical weapons
and direct precursors with little or no commercial use. Schedule II
chemicals are direct precursors with limited commercial uses. Schedule
III chemicals are indirect precursors with wide commercial use.
Now, both producers and consumers of chemicals on schedules one and
two are subject to CWC reporting and inspection requirements. For most
Schedule II chemicals, though, there is a one ton threshold.
As a result, only eleven American facilities will be subject to
Schedule I requirements, and less than thirty-five will be covered by
Schedule II requirements.
Turning to Schedule III chemicals, the rules change a little.
Only those facilities that produce, import or export more than
thirty tons of Schedule III chemicals are covered by those
requirements. Thirty tons. That's not a vial, that's not a barrel,
that's a lot of chemicals. And these rules apply only to producers.
Consumers of these chemicals will not be covered. As a result, only
about one hundred facilities face this requirement.
An even higher threshold applies to producers of discrete organic
chemicals, or ``docs.''
Facilities that produce more than two hundred tons of these
chemicals are subject to reporting requirements, as are those that
produce thirty tons of a chemical containing phosphorus, sulfur or
fluorine. But again, we're talking only about producers, and only
producers of hundreds of tons of these chemicals.
While the reporting requirements for discrete organic chemicals
will apply to as many as eighteen hundred U.S. companies, I don't know
of too many mom-and-pop businesses that produce two hundred tons of
chemicals every year.
In addition, several industries have been completely exempted from
all CWC requirements. These include explosives makers, hydrocarbon
producers, oil refineries, oligomer and polymer makers, and facilities
that make discrete organic chemicals through biological processes.
What does this mean? It means that plastics companies and textile-
makers and breweries face zero obligation under CWC. The Commerce
Department instructions for the brief data declaration says that in
black and white. Some of these exemptions are already in the treaty,
and the Conference of States Parties is all set to ratify the rest on
May 6.
So anyone who tells you that these industries will be hurt by CWC
is just dead wrong.
In addition, there will be an exemption for facilities that
manufacture a product that contains a low concentration of a scheduled
chemical. The treaty explicitly directs the Conference of States
Parties to adopt such a rule.
For Schedule III chemicals, the ones with wide commercial
applications, the proposed threshold is thirty percent.
So a plant that makes soap or cosmetics or one that processes food
would not be subject to CWC requirements.
I also want to address the charge that the CWC will lead to
international inspectors rummaging at will through American businesses.
This too is entirely untrue.
Only a limited number of facilities will be subject to routine CWC
inspections, and these are mostly the large chemical manufacturers that
are supporting the treaty.
These routine inspections will be conducted on the basis of
facility agreements negotiated with the full input of the plant
involved in order to protect trade secrets.
And there will be no warrantless searches. If a firm does not
consent to an inspection, an administrative or criminal search warrant
will have to be obtained before the inspection goes forward.
Moreover, all challenge inspections will take place under the
principle of ``managed access,'' where our government negotiates with
the inspectors over the places, records, and data that may be searched.
So, all inspections will take place under the supervision of U.S.
government officials.
Our exposure to loss of trade secrets due to the CWC is also
greatly overstated.
The CWC contains an unprecedented level of protections for
confidential business information, all of which were negotiated and
supported by industry.
The combination of close supervision of confidential business
information, plus the deterrence of our domestic criminal laws, should
keep losses of trade secrets to a bare minimum.
The facts are that American industry and the executive branch have
worked cooperatively--both in drafting the treaty and in drafting the
proposed implementing legislation--to minimize the burden on U.S.
industry.
The chemical industry is to be commended for the role that it
played in helping to negotiate this treaty, and I look forward to
hearing the testimony of our witnesses today.

The Chairman. Mr. Forbes.

STATEMENT OF MALCOLM S. FORBES, JR., PRESIDENT AND CEO, FORBES,
INC., NEW YORK, NY

Mr. Forbes. Thank you very much, Mr. Chairman, for allowing
me today to testify before your distinguished committee.
Senator Biden. Excuse me 1 second, Mr. Chairman. I would
like to point out one thing: Mr. Forbes won my State. I would
just like to point out that Delaware in the Republican primary,
voted for Forbes. So I want the record to note I smiled at him,
I have been very nice to him, I like him very much. We have
agreed very heartily. We are together on the radios, right, Mr.
Forbes? Tell them that, will you please?
Mr. Forbes. We are together on the radios, but I am keeping
on my Kevlar for protection.
There are many compelling reasons, I believe, to oppose
ratification of the Chemical Weapons Convention. The fact is
that the Chemical Weapons Convention significantly threatens
the freedoms we Americans cherish. It significantly diminishes
America's sovereignty and significantly increases America's
vulnerability to chemical warfare. It is as though we are being
asked to endorse a drug that worsens the disease it purports to
cure, and in addition has some highly dangerous side effects.
To explain just how dangerous the CWC side effects are,
just let me ask the distinguished members of this committee a
very simple question: What is the basis of America's greatness?
Why is it that although the international arena contains many
powers today, we are the world's sole superpower? Any adequate
answer to this ques-
tion would have to include such factors as the competitive
nature of our free market system, the unparalleled
technological sophistication of America's enterprises, but most
important, our basic freedoms. These are the sinews of our
power, the basis of our national greatness. It is precisely
these quintessentially American strengths that the convention
would undermine.
Let me begin by talking about America's competitiveness. As
I have strenuously argued on other occasions, maintaining
America's competitive edge requires a lessening of the tax and
regulatory burdens on the American people and on our Nation's
enterprises. Unfortunately, the CWC will have precisely the
opposite effect. It will burden up to 8,000 companies across
the United States. Remember, these are in the hands of an
international bureaucracy, not what we would like them to be,
with major new reporting regulatory and inspection requirements
entailing large and uncompensated compliance costs. These added
costs constitute an unfunded Federal mandate. Like so many
unfunded mandates, they are bound to retard our economic growth
and make our companies less competitive.
Is it not ironic, Mr. Chairman, meeting here as we are on
tax day and concerned as we all are with reducing the tax
burden on the American people, that we should even consider
ratifying a convention that amounts to a new tax on some of our
most innovative and productive companies? But it gets worse.
For in addition to the costs arising from heavy duty reporting,
the CWC subjects our chemical companies to snap inspections
that will allow other nations access to our latest chemical
equipment and information. No longer will violators of
intellectual property rights in China, Iran, and elsewhere,
have to go to the trouble of pirating our secrets. Incredibly,
we ourselves will effectively hand them the stuff on a silver
platter. No wonder former CIA Director and Defense Secretary
Jim Schlesinger has called the convention a godsend for foreign
intelligence services.
But it gets worse. The CWC also threatens the
constitutional rights guaranteed Americans under the Fourth
Amendment. As former Secretaries of Defense Dick Cheney, Don
Rumsfeld, and Cap Weinberger noted last September in a joint
letter to Majority Leader Trent Lott, quote: The CWC will
jeopardize U.S. citizens constitutional rights by requiring the
U.S. Government to permit searches without either warrants or
probable cause, end of quote. That is a serious statement from
these former defense chiefs, jeopardize U.S. citizens
constitutional rights.
Think about that, Mr. Chairman. And think about all the
criminal cases that our courts have summarily dismissed,
because in their view the defendant's constitutional rights had
been violated by police searches conducted without probable
cause. Are American businesses to receive less justice than
suspected felons? Of course not. The idea is preposterous. And
yet that is what compliance with the CWC would entail.
As Department of Justice officials publicly acknowledge in
testimony before the Senate Judiciary Committee on September 9,
1996, in cases where private facilities do not voluntarily
permit access to inspection a criminal warrant would be
required. Obtaining such a warrant from a court, however, would
require demonstration of probable cause. This will be
impossible in many cases, be-
cause under the Chemical Weapons Convention the nation
requesting an inspection need not cite its reasons for making
such a request.
Hence, the treaty poses an insoluble dilemma. Should the
U.S. Government choose to respect its citizens Fourth Amendment
rights not to be subjected involuntarily to searches in absence
of judicial warrants? It will be creating a precedent that
other countries will assuredly cite to refuse onsite
inspections in their territories. If we do not do it, do not
expect them to do it. On the other hand, should the Government
choose not to respect the Fourth Amendment rights it will be
acting unconstitutionally.
But it gets worse, Mr. Chairman, for in addition to
threatening our Fourth Amendment rights, the convention also
undercuts our Fifth Amendment rights against having our
property taken by the Government without just compensation. You
are familiar with Judge Robert Bork, who noted in a letter to
Senator Hatch last August, quote, Fifth Amendment problems
arise from the authority of inspectors to collect data and
analyze samples. This may constitute an illegal search and an
illegal seizure, and perhaps constitute the taking of private
property by the Government without compensation. The foreign
inspectors will not be subject to punishment for any theft of
proprietary information.
Mr. Chairman, these are very grave constitutional issues
that need to be resolved before the CWC is ratified. To wait
until after the convention is ratified and its provisions
become the supreme law of the land would be an act of supreme
folly.
Yet there is another pernicious aspect of this convention
that I would like to touch on, the very different impact it
would have on large and small companies. As former Secretary of
Defense Don Rumsfeld noted in testimony before this committee
last week, big companies are generally better able than small
companies to withstand additional reporting, regulatory, and/or
government inspection requirements. Some might even regard such
burdens as a barrier to entry that can enhance their market
share at the expense of their smaller competitors.
Now, large chemical manufacturers are among the most
pervasively regulated industries in the world. These companies
can reasonably conclude that the burdens of this convention are
manageable. The same certainly cannot be said of smaller, less
regulated companies, many of whom still seem to be unaware that
this treaty could adversely affect them and their bottom lines.
The array of American companies that fall into this category is
simply mind-boggling. They include those in such diverse fields
as electronics, plastics, automotive, biotech, food processing,
brewers, distillers, textiles, nonnuclear utility operators,
detergents and soaps, cosmetics and fragrances, paints, and
even the manufacture of ball point pen ink. The Senate will be
ill-advised to ratify a convention that could do harm,
unintended harm, to so many American enterprises without truly
compelling reasons to do so.
But finally, Mr. Chairman, in discussing the harmful side
effects of the CWC, I would like to draw your committee's
attention, as many other witnesses have done, to Articles X and
XI. These provisions, which obligate the signatories to
facilitate the fullest possible exchange of technology directly
relevant to chemical war fighting will be cited by other
governments, and maybe even by some American companies, as
pretexts for doing business with Iran and Cuba with adverse
consequences for U.S. National interests.
These then, Mr. Chairman, are just some of the costs
associated with ratifying the Chemical Weapons Convention. They
are unacceptably high. Are there any offsetting benefits?
Unfortunately, the answer is no, there are not. In fact, and
this is critical, far from protecting us against an outbreak of
chemical warfare, the convention would increase the likelihood
of these awful weapons being used.
As former Defense Secretaries Jim Schlesinger, Cap
Weinberger, and Don Rumsfeld wrote in last month's Washington
Post, it was March 5th, quote, the CWC would likely have the
effect of leaving the United States and its allies more, not
less, vulnerable to chemical attack. How would the CWC increase
our vulnerability to chemical attack? By giving rise, and this
has happened before in our history, to a false sense of
security and a diminished program for defending our troops and
our people against the danger of chemical attack by leading the
American people to believe that with this convention we have
somehow rid the world of chemical weapons when in fact even the
CWC's defenders acknowledge that it will be unverifiable,
unenforceable, and ineffective in globally banning chemical
weapons.
Historically, Mr. Chairman, phony arms control treaties
have invariably translated into reduced efforts by the
democracies to defend themselves against the predatory
dictatorships. Sadly, there is no reason to suppose that the
CWC will prove an exception to this general rule.
Mr. Chairman, if some of our best defense experts warn us
that this treaty will harm our vital security interests, if it
will lead to the creation of a massive intrusive U.N.-style
bureaucracy costing taxpayers as much as $200 million annually,
and if on top of all that it will diminish our competitiveness,
render us more vulnerable to economic espionage, endanger some
of or constitutional rights, and impose unfunded Federal
mandates on thousands of American companies, many of whom do
not even make chemical weapons, why on Earth should the
convention be ratified? To demonstrate leadership? But surely,
real leadership requires a willingness to stand alone if
necessary to defend our vital interests and ultimately the
interests of freedom-loving people around the world, not to
sacrifice those interests on the alter of a misguided
bureaucratic global consensus.
Unfortunately, that apparently is not the way President
Clinton understands U.S. leadership. He would have us be a
leader in implementing a global agenda consisting of
multinational accords that a majority of the American people
simply do not support. Like the CWC, these multinational
accords, whether they relate to the environment, patents,
property rights, the way we educate our kids, defraying the
costs of U.N. operations, or protecting our homes, are
unwelcome intrusions on American sovereignty. The best way to
resist all of this is simply to stop the present treaty.
And finally, Mr. Chairman, it speaks volumes about what is
wrong with the present CWC that its proponents declare that the
United States might become a pariah nation like Libya, Iraq,
and North Korea, if we do not ratify it. Surely only hardened
anti-American propagandists, deluded one worlders, can ever
entertain the idea that the United States is akin to North
Korea, Libya, and other pariah states. After all, these pariah
nations are developing and manufacturing chemical weapons at
the same time that America is destroying its stockpile of such
weapons. It is a sign of desperation, as well as an insult to
all Americans that President Clinton and some of his allies are
advancing this argument in order to defend a convention that is
truly indefensible.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Forbes follows:]

Prepared Statement of Malcolm S. Forbes, Jr.

Thank you, Mr. Chairman, for allowing me to testify before this
distinguished committee today.
There are many compelling reasons to oppose ratification of the
Chemical Weapons Convention. The fact is that the Chemical Weapons
Convention significantly threatens the freedoms we Americans cherish,
significantly diminishes America's sovereignty, and, significantly
increases America's vulnerability to chemical warfare. It's as though
we were being asked to endorse a drug that worsens the disease it
purports to cure and, in addition, has some highly dangerous side
effects.
To explain just how dangerous the CWC's side effects are, let me
ask the distinguished members of this committee a simple question. What
is the basis of America's greatness? Why is it that although the
international arena contains many powers, we are the world's sole
superpower? Any adequate answer to this question would have to include
such factors as the competitive nature of our free market system, the
unparalleled technological sophistication of American enterprises, and,
most important, our basic freedom. These are the sinews of our power,
the basis of our national greatness. Yet it is precisely these
quintessentially American strengths that the Convention would
undermine.
Let me begin by talking about American competitiveness. As I have
strenuously argued on other occasions, maintaining America's
competitive edge requires a lessening of the tax and regulatory burdens
on the American people and our Nation's enterprises. Unfortunately, the
CWC will have precisely the opposite effect. It will burden up to 8,000
companies across the United States with major new reporting, regulatory
and inspection requirements entailing large and uncompensated
compliance costs. These added costs constitute an added federal
mandate. Like so many unfunded mandates, they are bound to retard our
economic growth and make our companies less competitive.
Isn't it ironic, Mr. Chairman, meeting here on Tax Day and
concerned as we all are with reducing America's tax burden, that we
should even consider ratifying a Convention that amounts to a new tax
on some of our most innovative and productive companies?
But it gets worse. For in addition to the costs arising from heavy-
duty reporting, the Chemical Weapons Convention subjects our chemical
companies to snap inspections that will allow other nations access to
our latest chemical equipment and information. No longer will violators
of intellectual property rights in China, Iran and elsewhere have to go
to the trouble of pirating our secrets; incredibly, we ourselves will
hand them the stuff on a silver platter. No wonder former CIA Director
and Secretary of Defense James Schlesinger, has called the Convention a
``godsend'' for foreign intelligence services.
But it gets worse. The CWC threatens the constitutional rights
guaranteed Americans under the Fourth Amendment. As former Defense
Secretaries Dick Cheney, Donald Rumsfeld and Caspar Weinberger noted
last September in a joint letter to Majority Leader Trent Lott, ``the
CWC will jeopardize U.S. citizens' constitutional rights by requiring
the U.S. government to permit searches without either warrants or
probable cause.''
``Jeopardize U.S. citizens' constitutional rights''--think about
that, Mr. Chairman. And think about all the criminal cases that our
courts have summarily dismissed because, in their view, the defendants'
constitutional rights had been violated by police searches conducted
without ``probable cause.'' Are America's businesses to receive less
justice than suspected felons? Of course not--the very idea is
preposterous! And yet, that is precisely what compliance with the CWC
would entail.
As Department of Justice officials publicly acknowledged in
testimony before the Senate Judiciary Committee on Sept. 9, 1996, in
cases where private facilities do not voluntarily permit access to
inspection, a criminal warrant would be required. Obtaining a warrant
from a court, however, would require demonstration of probable cause.
This will be impossible in most cases, because under the Chemical
Weapons Convention, the nation requesting an inspection need not cite
its reasons for making such a request.
Hence, the treaty would post an insoluble dilemma. Should the U.S.
government choose to respect its citizens' Fourth Amendment rights not
to be subjected involuntarily to searches in the absence of judicial
warrants, it will be creating a precedent that other countries will
assuredly cite to refuse on-site inspections in their territories. On
the other hand, should the government choose not to respect those
Fourth Amendment rights, it will be acting unconstitutionally.
But it gets worse. For in addition to threatening our Fourth
Amendment rights, the Convention also undercuts our Fifth Amendment
rights against having our property taken by the government without just
compensation. As Judge Robert Bork noted in a letter to Sen. Orrin
Hatch last August:

* * * Fifth Amendment problems arise from the authority of
inspectors to collect data and analyze samples. This may
constitute an illegal seizure and, perhaps, constitute the
taking of private property by the government without
compensation. The foreign inspectors will not be subject to
punishment for any theft of proprietary information.

Mr. Chairman, these are very grave constitutional issues that need
to be resolved before the CWC is ratified. To wait until after the
Convention is ratified and its provisions become the ``supreme law of
the land'' would be an act of supreme folly.
There is yet another pernicious aspect of this Convention that I
would like to touch on--the very different impact it would have on
large and small companies. As former Secretary of Defense Donald
Rumsfeld noted in testimony before this Committee last week, big
companies are generally better able than small companies to withstand
additional reporting, regulatory and/or government inspection
requirements. Some might even regard such burdens as a barrier to entry
that can enhance their market-share at the expense of their smaller
competitors.
Large chemical manufacturers are among the most pervasively
regulated industries in the world. These companies can reasonably
conclude that the burdens of this Convention are manageable.
The same certainly cannot be said of smaller, less regulated
companies--many of whom still seem to be unaware that this treaty could
adversely affect them and their bottom lines. The array of American
companies that fall into this category is simply mindboggling. They
include those in such diverse fields as electronics, plastics,
automotive, biotech, food processing, brewers, distillers, textiles,
non-nuclear electric utility operators, detergents and soaps, cosmetics
and fragrances, paints, and even manufacturers of ballpoint pen ink.
The Senate would be ill-advised to ratify a Convention that could harm
so many American enterprises without having truly compelling reasons to
do so.
Finally, Mr. Chairman, in discussing the harmful side effects of
the Chemical Weapons Convention, I would like to draw your Committee's
attention to Articles X and XI. These provisions, which obligate the
signatories to ``facilitate the fullest possible exchange'' of
technology directly relevant to chemical war-fighting, will be cited by
other governments--and, probably, by some American companies--as
pretexts for doing business with Iran and Cuba, with adverse
consequences for U.S. national security interests.
These, then, are some of the costs associated with ratification of
the Chemical Weapons Convention. They are unacceptably high. Are there
any offsetting benefits? Unfortunately, the answer is no, there aren't.
In fact, far from protecting us against an outbreak of chemical
warfare, the Convention would increase the likelihood of these awful
weapons being used. As former Defense Secretaries James Schlesinger,
Caspar Weinberger and Donald Rumsfeld wrote in last month's Washington
Post (March 5), ``The CWC would likely have the effect of leaving the
United States and its allies more, not less, vulnerable to chemical
attack.''
How would the CWC increase our vulnerability to chemical attack? By
giving rise to a false sense of security and a diminished program for
defending our troops and people against the danger of chemical attack.
By leading the American people to believe that with this Convention we
have somehow rid the world of chemical weapons when, in fact, even the
CWC's defenders acknowledge that it will be unverifiable, unenforceable
and ineffective in globally banning chemical weapons. Historically,
phony arms control treaties have invariably translated into reduced
efforts by the democracies to defend themselves against the predatory
dictatorships. Sadly, there is no reason to suppose that the Chemical
Weapons Convention will prove an exception to this general rule.
Mr. Chairman, if some of our best defense experts warn us that this
treaty will harm our vital security interests? If it will lead to the
creation of a massive, intrusive, U.N.-style bureaucracy costing
American taxpayers as much as $200 million annually? And if, on top of
all that, it will diminish our competitiveness, render us vulnerable to
economic espionage, endanger our constitutional rights, and impose
unfunded federal mandates on thousands of American companies, none of
whom even make chemical weapons, why on earth should the Convention be
ratified? To demonstrate ``leadership''? But surely, real leadership
requires a willingness to stand alone, if necessary, to defend our
vital interests and ultimately the interests of freedom-loving peoples
around the world--not to sacrifice those interests on the altar of a
misguided, bureaucratic global consensus.
Unfortunately, that apparently is not the way President Clinton
understands U.S. leadership. He would have us to be a ``leader'' in
implementing a global agenda consisting of multinational accords that a
majority of the American people simply do not support. Like the
Chemical Weapons Convention, these multinational accords--whether they
relate to the environment, patents or other property rights, or to the
ways in which we educate our children, defray the costs of the U.N.
operations or protect our homes--are unwelcome intrusions on American
sovereignty. The best way to resist them is to stop the present treaty.
Finally, Mr. Chairman, it speaks volumes about what is wrong with
the present Chemical Weapons Convention that its proponents declare
that the United States will become a pariah nation like Libya, Iraq and
North Korea if we do not ratify it. Surely, only hardened anti-American
propagandists and deluded One-Worlders could ever entertain the idea
that the United States is akin to North Korea, Libya, etc. After all,
these pariahs are developing and manufacturing chemical weapons at the
same time we are destroying ours. It is a sign of desperation, as well
as an insult to every American, that President Clinton and his friends
are advancing this argument in order to defend a Convention that is
truly indefensible.
Thank you, Mr. Chairman, for your gracious attention.

The Chairman. I suggest, anticipating that additional
Senators will appear, there are afternoon committee meetings
going on, as well, in other areas of the Capitol. I suggest
that we embark on about a 7.5 minute round of questions.
First of all, I am going to use a few minutes of my time to
say that my dear friend, the Senator from Delaware, never
disappoints me. Somehow he always comes up with statistics that
I do not know where they came from, and I do not know that he
can explain them, either. But here he did it again today. But I
am concerned, I must say to my friend, that the administration
has becoming expert in low-balling the number of businesses
that will be affected by the chemical weapons treaty, in order,
I think obviously, to avert concern in the Senate.
Now, back in 1993 the Congressional Office of Technology
Assessment reported that the administration believed that over
11,200 facilities would be subject to this treaty. During the
past 4 years, that number has gone down like the Titanic. It
dropped to 6,300 in October 1994, and then to 3,000 in May
1996. Now, continuing the trend of the CWC's seemingly ever-
shrinking impact upon business, ACDA is now declaring that only
2,000 companies will be affected. Lord knows what it is going
to be tomorrow morning at 10.
Yet when I review the response codes on ACDA's industry
data base, it seems to me that the administration has simply
developed now new information about 5,583 of these facilities
to confirm or deny--confirm or deny--that they would be
affected by the CWC. In fact, as of last year only 668
facilities in the entire country had responded to ACDA in
recognition of the fact that they would have new regulatory
obligations under the CWC. This means that even CMA-owned
facilities have not responded to ACDA's industry survey
questionnaire.
Accordingly, I do not think it is appropriate for the
administration to reduce their estimates when the companies
themselves have not responded one way or the other, or to
confirm or deny that they use or produce the chemicals that are
subject to the treaty. Accordingly, I think there are serious
problems with the statistics that may have already been
presented today by my friend, or subsequent to that.
Now, Mr. Forbes, the CWC will require the Lord knows how
many American companies to fill out detailed data declarations.
Some companies have conducted comprehensive internal cost
reviews of their own, based on the instruction manual and draft
regulations compiled by the Commerce Department. The cost
estimates associated with the reporting burden range from
$1,500 to $2,000 for two small companies producing discrete
organic chemicals, up to $250,000 estimated by a large
diversified company.
Now, my question to you, sir, is do you think the
advantages of this treaty, if any, are sufficient to warrant
subjecting American companies to this new regulatory burden?
Mr. Forbes. Absolutely not. Even putting aside the fact
that other nations can easily circumvent this treaty, just as
other nations violated the 1925 accord banning the use of
poison gases, even if that is true it will impose a burden on
American companies, and to concentrate on trying to assess what
that burden is, trying to assess how we might reduce it, it
lies in the interpretation of a body over which we will have
little effective control.
And so I do not see what the advantages are to argue,
whether it is going to be 100 facilities or 10,000 facilities,
Mr. Chairman, when you were reciting those numbers I thought
for a moment you were talking maybe about the stock market
going down to 2,000.
But we do not know. It is uncharted territory. We do not
know what kind of inspections it will go to.
When the Iranians put in the request that they have spotted
a challenge inspection somewhere, we do not know. And if we do
not know, what are we doing it for? And given the history of
these agreements and given how easy it is to produce deadly
weapons, I mean, look at Iraq. The most trod on nation in the
world in terms of inspections. Yet Saddam stays one step ahead
of those inspectors. If it cannot work in Iraq, why are we
subjecting ourselves to this in the first place.
The Chairman. According to the Congressional Office of
Technology Assessment, to which I referred a minute or so ago,
the U.S. Chemical industry is one of the top five industries
targeted by foreign governments, and the problem of industrial
espionage is growing. Do you agree with that statement?
Mr. Forbes. Yes, and we have seen an example of it last
year.
The Chairman. And because proprietary information is often
the basis for a chemical company's competitive edge, both
nationally and internationally, the theft of trade secrets can
result in major loss of revenue and investment. In fact, the
theft of trade secrets can cripple even a giant company,
according to this report, and can be fatal to a small
enterprise. I suppose that you agree with that assessment by
this government agency.
Mr. Forbes. [Nods affirmatively.]
The Chairman. But in any case, former Secretary of Defense
and Director of Central Intelligence Jim Schlesinger testified
last week, sitting almost where you are sitting right now, that
the CWC would be a godsend, and that is his word, a godsend to
foreign companies and governments engaged in industrial
espionage. My question, sir, is do you agree with Jim's
assessment of that?
Mr. Forbes. I am afraid so, yes.
The Chairman. The Chemical Manufacturer's Association,
which represents the largest--the largest--U.S. Chemical
companies, supports ratification of this treaty. This past
week, as you know, former Secretary of Defense Rumsfeld
suggested that the reason for CMA's support may be due to the
fact that the large companies can cope with the new regulatory
burden and so forth, but these are not surmises, they are the
result of studies by a number of us. My question is how badly
do you think this treaty will harm U.S. industry, and why do
you think the association supports it?
Mr. Forbes. Well, large companies can cope with regulation.
In fact, historians of regulation in America point out that
larger companies often like regulation, often like government
intruding, because that makes it more difficult for competitors
to enter the business and compete. When airlines were
deregulated we got a whole host of new companies coming in.
When telephones were deregulated a whole host of new companies
came in. When railroads were deregulated, short lines
proliferated. So I think he is onto something.
It seems to be in human nature. They are obviously
supporting it with the most honorable of motives. They think it
will be good. But that begs the question. Here we are getting
into almost how many angels dance on a pin arguments about how
many facilities, what kind of chemicals, Schedule III, Schedule
II, which begs the question will this reduce the possibility of
production of poisonous chemicals around the world by nations
that wish to do it. The answer is no.
The Chairman. I thank you.
Senator Biden.
Senator Biden. Thank you very much.
Mr. Forbes and Senator Helms, let me tell you where I got
my numbers. I got my numbers from an analysis done by the
Commerce Department, and the way it explains its previously
higher number--I am reading from a letter signed by former
Secretary of Commerce Mickey Kantor and Philip Lader,
Administrator of the Small Business Administration. And I
quote:

Previously, the administration had estimated that more
companies would be required to submit a data declaration.
However, additional analysis indicated that many did not cross
the CWC production threshold for reporting. Further,
administrative exemptions at the Organization for the
Prohibition of Chemical Weapons (OPCW) will be crafted to
exclude entire industries from reporting--biomediated processes
(such as certain beverages), polymers (such as certain plastics
used in football helmets),* * *. In addition, plant sites that
exclusively produce hydrocarbons (e.g., propane and ethylene)
are completely excluded from reporting requirements.

That is why the number is different. Number 1.
Number 2, I might point out that these onerous reporting
requirements are a total of, for Schedule I, I believe, six
pages long, for Schedule II I think it is seven, and Schedule
III it is five. And of Schedule III and the so-called DOC's,
which total roughly 1,900 of the 2,000 companies we are talking
about, the total number of inspections under the treaty
allowed, period, in any 1 year is 20. Let us put this in
perspective--20.
Now, it does not go to the sovereignty argument Mr. Forbes
raised. I understand that. But it goes to the facts--20--t-w-e-
n-t-y--20. And if there are 1,800 of those 1,900 companies, as
I am saying, that are in Schedule III and the so-called DOC's,
if I am right about that, it is 20 out of 1,900. If it is
10,000 or whatever number my friend uses, or 6,000, it is 20.
That is Number 1.
Number 2, on this issue of search warrants, there is a
section in the treaty now, put in at the insistence, I am told,
of President Bush, and it deals with covering the Fourth
Amendment. It is good to see Mr. Gaffney here. Mr. Gaffney, you
staff more people than I have ever seen. You are a very, very
ubiquitous fellow. Every witness we have had against, you have
been staffing, and they are fortunate to have your expertise.
``In meeting the requirement to provide access as specified
in paragraph''--I am reading from the Verification Annex of
Challenge Inspections. ``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 or searches and
seizures.'' But assuming that was not sufficient, which it
clearly is legally, assuming that was not sufficient, we are
prepared to accept a condition to the treaty requiring search
warrants for challenge inspections and the establishment of
probable cause.
Now, I might also point out there is--this is black letter
law, what I am referring to now. We are not talking about any
hyperbole on my part about how search warrants work and do not
work. The Supreme Court, in Marshal v. Barlow's, Incorporated,
a decision argued June 9th, 1978, decided May 23rd, 1978, which
is the prevailing law, talks about administrative warrants,
criminal warrants, and those inspections where no warrant is
required. And I might add, Federal law authorizing warrantless
searches, which I am sure, I suspect Mr. Forbes, you would
disagree with all these, but in fact I am citing what the law
is. I am not implying that you agree what the law should be. I
would imagine you do not think there should be the Federal
Insecticide, Fungicide, and Rodenticide Act; or the Nursery
Stock Guarantee Act; or Immigration and Naturalization Act; or
Toxic Substance Control Act; Consumer Product Safety Act;
National Forest System Drug Control Act; Bald Eagle Protection
Act; Migratory Bird Treaty; Skies Act; Fisher and Wildlife Act
of 1956; Northern Pacific Halibut Act of 1982; Whaling
Convention of 1949; Tuna Convention of 1950; Eastern Pacific
Tuna Licensing Act of 1934, Endangered Species Amendments of
1982, Antarctic Conservation Act of 1978, Antarctic Marine
Living Resources Convention of 1984, Lacy Act Amendments of
1981; Food and Drug and Cosmetic Act; Federal Meat Inspection
Act; Fisherman's Protective Act; Distillery Spirits Act;
Occupational Health and Safeties Act; Migrant Season
Agricultural Workers Act; Mine Safety and Health Act; Safe
Drinking Water Act; Surface Mining Control Act; Clean Water
Act; Resource Conservation Recovery Act; Clean Air Act;
Comprehensive Environmental Response Compensation Liability
Act; and Federal Land Policy Management Act. I may have made
the case why the Government is over-reaching. But I also would
argue this makes the case that what is suggested in this treaty
is nothing--nothing--nothing--different than the way in which
the law has worked so far. None of these requires an act.
To walk on your estate to find out whether you are shooting
bald eagles, which I am sure you are not, Mr. Forbes, they are
allowed to do that without a warrant, old buddy. They are
allowed to do that. So there are a lot of things you are
allowed to do without a warrant. But there is a second category
here. Nothing in here can be done without that kind of warrant
if, in fact, any business objects.
There is a second category in the Supreme Court law, and it
is called an administrative warrant. And it says for purposes
of administrative search such as this, and I am reading from
the case and there was an OSHA inspector who wanted to come on,
probable cause justifying the issuance of a warrant may be
based not only on specific evidence of existing violations, but
also on showing that reasonable legislative, administrative
standards for conducting an inspection are satisfied with
respect to a particular establishment. That is an
administrative warrant.
And third, there is a third kind of warrant, and that is a
criminal warrant.
So we are willing to add a condition to this treaty
requiring a criminal warrant in addition to an administrative
warrant, where I might add under our Constitution and our
Supreme Court now in similar circumstances--because the Court
uses all this test on all Fourth Amendment cases--they use this
notion of whether or not there is reason to believe the party
involved thought they were protected from this kind of
intrusion, whatever it is. And they argue that pervasively
regulated industries start off without the benefit of the
presumption that they would not be inspected without a warrant.
That is the basis on which the Supreme Court could uphold all
of these warrantless inspections or searches.
We are not talking about that. We are talking about
criminal warrants in areas where there are challenge
inspections. And so I hope when you see the condition, which I
would be happy to show you Mr. Forbes, your concern on at least
that one issue will be mildly allayed.
Mr. Forbes. By the way, Senator, I do not shoot bald
eagles, and I do not shoot Democrats, either.
Senator Biden. Well, I will tell you what, if anybody could
shoot Democrats and do it effectively, you are very good at it;
and I mean that in a complimentary way. The way I saw you take
my State by storm, I am glad I was not a Republican standing in
the way of your shots.
Mr. Forbes. Some of my best friends are Democrats.
Senator Biden. And mine Republican.
The Chairman. I have just got one question. Did you
understand the question?
Senator Biden. Well, I did not hear the answer, Mr.
Chairman.
Mr. Forbes. I am trying to be diplomatic, Mr. Chairman.
The Chairman. Senator Hagel.
Senator Hagel. Mr. Chairman, thank you.
Welcome, Mr. Forbes. Good to have you with us.
Mr. Forbes. Thank you, Senator.
Senator Hagel. As you know, every time I have an
opportunity to be a part of this committee, it is a rather
didactic experience, listening to my colleagues.
I never knew, Senator, that we had that many acts. And the
way you went right through them was magnificent.
Let me, before I ask you a question, Mr. Forbes, make this
observation. I think all my colleagues on this panel and in the
U.S. Senate are coming at this issue based, first, not on what
is good for business, what is bad for business, but what is
good for America, what is in our best security interest.
Mr. Forbes. Right.
Senator Hagel. That is the way I am looking at it.
Obviously we have other elements and dynamics that are involved
in this discussion. We should debate them. We should hear your
views, as the next panel's views will be, I suspect, somewhat
different. But I think it is important that we not lose sight
here of what we are about. And that is dealing with the reality
of a very unstable, very dangerous world. And everybody's
opinion must be heard, but, in the end, it seems to me, and I
think I can speak generally for my colleagues, that we must do
what is right for the security interests of this country.
In particular, the young men and women of our armed forces,
who may some day be called upon to fight in a theater against a
nation that is using chemical weapons. And I think the defining
question for all of us is, does this treaty help them or hurt
them?
Now, with that said, I would like for you to delve in a
little more into Articles X and XI, the transfer of technology,
the obligations of what we share with our treaty friends and
allies. That has gotten an awful lot of attention during the
course of this debate, which I think it should have and is
appropriate. And I noted you mentioned it in your testimony.
And I would like for you to define more of that, if you would.
Mr. Forbes. Well, under Articles X and XI, there is the
very real possibility that if we, one of our companies, we come
up with a way of defending against chemical weapons, that that
technology may end up in the hands of countries around the
world. Countries who sign on to this convention have the right
to request that technology. And we may be obliged to provide
that technology.
And I think that that is a very real danger. The fact that
four defense chiefs believe that we may have to give up
information and technology that could be used for defensive
purposes and would therefore allow a rogue nation to reverse
engineer, to figure out how to possibly get around these
defenses is, I think, a good reason to pause and say, is this
the best way to protect our people in the future?
And if you look at the history of treaties, especially in
the twenties, simply saying you are against poison gases,
against war, as we did in the Kellogg-Briand Pact of 1928, or
against armaments, as we did in the Naval Disarmament Treaty of
1922, guarantees, ultimately, nothing. In the 1980's, for
example, Iraq used poison gases against Iran. Iraq used poison
gases against the Kurds. The international community did
nothing, despite that 1925 Geneva agreement.
So the possibility that they could get that kind of
technology and put it to uses to which we do not want it to be
put to use is something that, as I say, should give us real
pause.
Senator Hagel. In your opinion, can this treaty be fixed?
Mr. Forbes. I think you have to ask a very basic question.
Given the nature of chemicals, given the fact that you can take
compounds--what they call precursors or ingredients--that in
and of themselves are harmless, put them together in a basement
laboratory and come up with something that is deadly, should
make us think, is this the best way to protect our people,
where we are subject to interpretations on inspections, but
those who want to do it can do it?
Take Iraq again. They have inspectors on their soil. They
were humiliated in a war. Yet the head of the agency that is in
charge of those inspections said recently that the Iraqis have
more than a handful of missiles, and it looks like they are
playing games again with biological and chemical weapons. If
they can do that under that kind of supposedly severe regime,
who knows what Iran is doing.
We know what Libya is doing in the areas of biology, thanks
in no small part to the Germans. So does this treaty make us
more secure or does it end up being one of those situations
where, despite its good intentions, it does more harm than
good?
I, so far, based on the evidence I have seen as a citizen,
I think it does more harm than good, especially when you look
at the treaties of the twenties. What good did they do when
violators were there?
Senator Hagel. Should we have a chemical weapons treaty?
Can, in your opinion, we produce one?
Mr. Forbes. Well, there is a bill, I understand, Senator
Kyl and others have been putting together that might do
something in terms of something substantive. I have not seen
the bill. So maybe there is a better way to do it. But,
clearly, this convention is not the way to do it, given the
flaws that those defense chiefs and others have pointed out.
Senator Hagel. If I could also refer back to your
testimony, your point about it giving rise to a false sense of
security. Which, I think, by the way, has been overlooked in
some of our deliberations here, and has been easily dismissed,
because it is one of those intangibles that is easy to dismiss.
Would you like to elaborate a little bit on your comment about
a false sense of security?
Mr. Forbes. Well, the classic case are the three treaties
of the twenties, the Naval Disarmament Treaty of the early
twenties, the prohibition against poison gas in the mid-
twenties, and the Kellogg-Briand Pact in the late-twenties,
that led the British and the democracies--not so much the
French, but certainly the British--to believe that they did not
have to take adequate measures for defense. And once you start
on that slope, it is very hard to reverse it. Because there are
always pressing domestic priorities. We see it today.
We are now downsizing to where our defense spending as a
proportion of our GDP is getting down to below Pearl Harbor
levels. But it is very hard to reverse, given the pressures
that we face each day.
So, also, too, given some of the treaties we had in the
sixties and seventies--look at SALT I--that did not prevent the
Russians from a massive armaments program, which necessitated
our building up in the 1980's. So it goes right up to modern
times.
And also, too, in the early nineties, we did sign an
agreement with the Russians on chemical weapons. And the
evidence indicates that they are going ahead and developing and
producing deadly chemical weapons. They are ignoring what we
signed 6 or 7 years ago.
Senator Hagel. Is there a particular way you get at the
Russian chemical weapons program, in your opinion?
Mr. Forbes. Well, you publicize it. You make it very clear
that this is going to affect our bilateral relations. In other
words--I will give you an example outside of the defense area.
A little over a year ago we were ready to sign an agreement, a
worldwide agreement, on telecommunications. To its credit, this
administration said this is pretty weak stuff, we can do better
to open up those markets. Everyone said, oh, no, this is going
to--our international allies will be upset at us. But, to its
credit, Kantor and others said no, we are going to go for a
better deal.
A few months ago they got a better deal. Because we took
leadership. We had a clear idea on what we wanted. And here are
two signatories, supposedly, of this convention. And here is
the headline: China helps Iran--it was just in the paper on
Sunday--develop chemical arms. The treaty is not worth the
paper it is written on the way it is now.
Senator Hagel. Thank you.
Thank you, Mr. Chairman.
Mr. Forbes. Thank you.
The Chairman. What do you think, about 2 or 3 minutes a
piece for the next round? You name it.
Senator Biden. Three. If you give me the choice, I will
take the higher.
The Chairman. You go first.
Senator Biden. Well, thank you, Mr. Chairman.
Mr. Forbes, it is interesting, you cited these treaties and
agreements in the twenties as being useless, yet no chemical
weapons were used in World War II.
Mr. Forbes. They were not used in World War II, because
both sides felt it would be counterproductive to their own
interests.
Senator Biden. Right.
Mr. Forbes. Not because of a treaty.
Senator Biden. Right.
Mr. Forbes. In the 1980's, when Iraq thought it was in its
interests to use it, it did. And the international community
did nothing.
Senator Biden. Right. Now, you acknowledge that does not
have anything to do with whether there is a treaty or is not a
treaty, right?
Mr. Forbes. I am saying it takes U.S. leadership, in terms
of national security, to make things happen. Signing a piece of
paper will not, in and of itself, do it. As you know,
enforcement is key. But, unfortunately, the history of these
treaties suggests that in a democracy, where we would rather be
doing other things, like bettering our lives, than having to
worry about defense, these treaties do have a lulling effect,
where we do not take the necessary steps.
Senator Biden. Well, we did all these arms control treaties
and the cold war is over. Not because of that, but not in spite
of that. I mean it is over. You know, all this stuff, these
horrible treaties we signed and these arms control treaties, it
is amazing, the Soviet Union is gone, in spite of the fact that
we lulled ourself to sleep with all those things. It just
amazes me how that happened.
Mr. Forbes. No. What happened, as you know, in the late-
seventies, we were in serious trouble. We were in serious
trouble here at home. The Soviet Union was on a major arms
buildup. It gratuitously, because it did not respect our
leadership, invaded Afghanistan. And that led, as it does in a
democracy, in the American democracy, to a sense of alarm, a
sense of renewal. And that is how we got the buildup of the
eighties. Ronald Reagan stood strong, and we won the cold war.
If we continued the policies of the seventies, we would
still have the cold war today.
Senator Biden. Well, what you are saying is, if we continue
the policy of being strong and staying vigilant and have arms
control treaties, they work in tandem. That is what Reagan did,
did he not? He is the guy that gave us START. He is the guy
that had this buildup and also got rid of the nuclear weapons,
right?
Mr. Forbes. Because he did it--he had credibility to make
the agreements work.
Senator Biden. I see. I see.
Mr. Forbes. And this agreement, even if you have Ronald
Reagan--he said--Ronald Reagan said ``Trust, but verify.''
Senator Biden. Right.
Mr. Forbes. The villains here are not trustworthy.
Senator Biden. And he drafted the treaty.
Mr. Forbes. The villains here are not trustworthy, and you
cannot verify what the North Koreans are doing or even what
signatories like the Iranians or the Chinese may be doing. So
this is a treaty, unlike some of the earlier arms agreements,
this is one where the U.S. leadership is going to be for
naught. You cannot do it.
Senator Biden. Have you seen an arms control agreement you
like?
Mr. Forbes. The test ban of 1963 was good, sure.
Senator Biden. How about the one now? How about the Nuclear
Test Ban Treaty now?
Mr. Forbes. Fine. Fine. That is where judgment----
Senator Biden. Mr. Gaffney just blanched. He is going to
work on you on the way out.
I expect, by next campaign, you will have a different view.
Thank you, Mr. Chairman.
The Chairman. Why do not you go ahead. I will go last.
Senator Hagel. Thank you, Mr. Chairman.
Mr. Forbes, would you go back and talk a little bit about
your earlier statements, the effect on smaller, less regulated
companies, in your opinion, this treaty would have.
Mr. Forbes. Well, this is, as you can see by the numbers
that are being bandied about and how you interpret what is in
the convention and what we promise we might add to the
convention, makes it a whole murky area. We are on uncharted
waters. And to say gee, it is going to be simple, the initial
requirements, given the nature of bureaucracies--we know they
do not say give us less paper--usually one thing leads to
another.
Senator Hagel. Well, I was interested very much in Mr.
Rumsfeld's comments when he was here last week. What he was
going beyond getting to was it would have, in his opinion, this
treaty, a very inhibiting factor on young, small companies. And
Senator Biden has, I think, addressed some of that. And I guess
where we all have to come down to is where is the truth here.
And I had an opportunity to be with Senator Biden last week on
some of this. But that is a factor that I think is very
important here. Because these young companies that are the
engines of our economy should not have to carry a
disproportionate burden here if we would go forward with this
treaty or some form of this treaty.
And if you would like to, especially from your perspective,
come at this in some way, I would be grateful for any other
comments you want to make on this.
Mr. Forbes. Well, as you know, it is conceptual, because we
do not know how the new body in The Hague is going to--how
vigorous it is going to be in terms of these intrusive
inspections. We also do not know about the so-called challenge
inspections, whether they are going to be used against a
smaller company, which could put it out of business. This is
uncharted territory. But history shows that when you have
regulations, when you have to keep track of things not for a
business purpose but for a potential inspection or actual
filings, it does have a cost and an inhibiting effect.
And you can see the nature of bureaucracies. Look what
happened to telecommunications. We passed a bill a little over
a year ago that said it was supposed to remove some of the
shackles. The way it has been interpreted by the courts and the
FCC, it is just as regulated as before--almost as regulated as
before.
Senator Hagel. Thank you, Mr. Chairman.
The Chairman. Mr. Forbes, what do you think of the drop
dead date of April 29th? They say that the whole thing will
collapse and we will be at the mercy of all these rogue nations
if we do not ratify this treaty by the 29th, but we will have
to pay one-fourth of the cost nonetheless. Does that make any
difference to you?
Mr. Forbes. Yes. And unfortunately, when you urge other
nations to ratify something in order to trigger a date like
April 29th, I think that shows a lack of good faith. And this,
again, gets to leadership. If we were truly interested in
looking at this in a timely but reasoned way, without an
artificial deadline, maybe we could strengthen the treaty. I do
not think so. But to put an arbitrary date and say the world
will come to an end, when we help engineer that date, I think
we should say----
The Chairman. Well, it was clearly put there, do you not
think, to stampede the Congress, or the Senate, to say that
boy, we got to do this by the 29th of April or the whole world
collapses? I have heard it over and over and over again, and it
does not hold any water at all.
But let me tell you what has happened. I think that the
effort by some in the media, the Washington Post and the New
York Times and some like that, that have advocated this treaty
to the point of absurdity--there have been other newspapers--
the Wall Street Journal has done a good job, your magazine has
done a good job, and some others--but for the most part, the
American people were not paying any attention to this treaty
actually. So the result was that they could say 73 or 83
percent of the people approved the treaty.
Well, all of a sudden, the worm turned and the contents of
this treaty were being analyzed in the media, particularly on
the radio and in television. And I have a poll here that shows
a total sample, total support as of April the 5th was 31
percent for the treaty--31 percent of the people support the
treaty; 60 percent oppose it.
Now, in my own office they keep track of the calls,
particularly when I am involved in an issue. And even in my
home State a lot of people, even though they support me, they
kept reading in the liberal media that this was such a great
and grand thing and only idiots would oppose. And so that had
some effect. It was about 50/50 in my State. Now it is about
80/20. And in our telephone calls, we had 83 calls yesterday
relating to this treaty.
How many do you think supported it?
Three. Eighty now oppose it. So I think they have
overplayed their hands.
I see Senator Kerry is here. And we had agreed on 3 and a
half minutes. Is that what we said? We are glad to have you,
sir.
Senator Kerry. Well, that is time for a good dialog, Mr.
Chairman. Thank you very much.
Mr. Forbes, I have been interested to see that the Chemical
Manufacturers' Association, the Synthetic Organic
Manufacturers' Association, the Pharmaceutical Research and
Manufacturers' Association of America, the Biotechnology
Industry Organization, the American Chemical Society, the
American Physical Society, the American Institute of Chemical
Engineers, the Council for Chemical Research, and several other
chemical trade organizations all strongly support the CWC. And
they urge us to vote to ratify it. And they all insist that it
will not pose an undue burden on business.
The National Federation of Independent Businesses responded
to treaty opponents' claims that they were opposed by saying
that those claims were 100 percent incorrect, according to the
Wall Street Journal, which also quotes an NFIB official as
predicting its members are not going to be impacted, contrary
to your statement about small business.
So I really need your help in understanding what is the
documentation here. On what do you base this notion? If the
chemical industry, which is the industry that subjects itself
to inspections, is for it, and they are threatened by the loss
of some $600 billion worth of business, why are you so
convinced they are wrong? And what evidence do you have to
support that they are wrong and cannot look out for their own
interests?
Mr. Forbes. Well, first of all, as a general matter, there
is no way that--the CWC is unverifiable and unenforceable with
states like Iran, China, not to mention those that are not
going to even sign the thing. The question now comes, how
intrusive will it be on the United States?
Don Rumsfeld, who had testified here last week, who has
been in a large business, made the point that historians have
made. And that is big businesses can cope with regulations
better than small businesses. As a matter of fact, when you
have a regulatory regime, it makes it harder for small
businesses to get in and compete. And they figure that since
they are heavily regulated anyway, they can put up with this
kind of regime.
But the fact of it really is not whether it is good for the
Chemical Manufacturers' Association, the question is, is it
enforceable, is it verifiable, is it good for the interests of
the United States? Because if it is not good for America, then
we should not do it just because a trade association says it
might benefit our members. So big companies, as a rule, can
cope with regulations, but small businesses can less cope with
regulations. And the real problem is not just routine
inspections--we can cope with those--but so-called challenge
inspections. And that is unchartered territory.
Senator Kerry. Well, the challenge inspections, according
to every observer, are going to take place primarily at
military facilities. Nobody anticipates a series of major
challenges at the commercial facilities.
Mr. Forbes. Well, given the nature, as you know, of----
Senator Kerry. And we are not looking at small
manufacturers here. I mean you are aware, are you not----
Mr. Forbes [continuing]. Given, Senator, the nature of the
manufacture of chemical weapons, since it can be done in a
basement or a bathtub----
Senator Kerry. Correct.
Mr. Forbes [continuing]. It may need to be--experts say it
should not need to go beyond military bases. But with chemical
weaponry, since you can manufacture it almost anywhere, you may
need a challenge inspection.
Senator Kerry. Well, let us follow that through. It can be
manufactured anywhere, correct? It can be manufactured
anywhere, even as we sit here today, correct?
Mr. Forbes. Well, you look at Iraq----
Senator Kerry. Just follow me through. Just follow the
thinking.
Mr. Forbes. Yes, OK.
Senator Kerry. It can be manufactured anywhere, as we sit
here today, can it not?
Mr. Forbes. Yes.
Senator Kerry. And this regime, this CWC, you are aware, is
going to take effect no matter what we do; you are aware of
that?
Mr. Forbes. Yes.
Senator Kerry. So as of April 29th, a date that you want to
discard, something is going to happen, is it not? Correct?
Mr. Forbes. Not if we take leadership.
Senator Kerry. No, no matter what we do, something happens.
You are absolutely incorrect.
Mr. Forbes. No, Senator----
Senator Kerry. On April 29th, the group that organizes the
process of inspections takes its work without the United States
of America, because we have not ratified it. Only those who
have ratified are part of that; is that not correct?
Mr. Forbes. OK.
Senator Kerry. So, no matter what we do, on April 29th, I
think it is 70 nations are going to sit down at a table and
say, OK, how do we go about the business of doing what the
United States asked us to do, but now does not want to do,
correct?
Mr. Forbes. That is one way to put it. There is another way
to put it.
Senator Kerry. Is that not accurate?
Mr. Forbes. What is your question? Because I believe----
Senator Kerry. My question was very simple. Is not that
fact going to happen? Are they not going to sit at a table,
without the United States, if we do not ratify it?
Mr. Forbes. They may sit at a table, but if the United
States takes the lead, that treaty can be rewritten. We helped
trigger that April 29th date by asking other nations to ratify
that convention, so that trigger date came in. It was a cynical
ploy by this administration to put the Senate in a box and say,
if you do not ratify this, you are harming the future by
allowing chemicals out there. They are using symbol over
substance. And I think it is a shame that we have been put in
that box. And we should say no.
As I pointed out earlier, in a whole other area, in
telecommunications, for once this administration took a proper
lead, over a year ago. There was a bad agreement on the table.
Kantor said we can do better. Our allies said we cannot do
better. He said we can. We went back to the table. We got a
better agreement. And it was put on the table again this year
and everyone praised it as being better than it was for
American interests a year ago.
So we put ourselves in the box, and a great nation should
say, if we put ourselves in a box and it is not good for
America and not good for the world, we can take ourselves out
of the box.
Senator Kerry. Well, let me address that. You are a
promoter and have been--and I admire what you and your family
have done to promote capitalism and the notion of
entrepreneurship. As an entrepreneur, having signed on to this
treaty--72 nations is the number that have ratified it--they
will now be in a position where they can engage in a formal
trade, under Schedule II, chemicals. But any nation that is not
a participant is not going to be able to engage in that,
correct?