CHEMICAL WEAPONS CONVENTION
SENATE FOREIGN RELATIONS COMMITTEE APRIL 1997


                                                        S. Hrg. 105-183
                       CHEMICAL WEAPONS CONVENTION
=======================================================================
                                HEARINGS
                               BEFORE THE
                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE
                       ONE HUNDRED FIFTH CONGRESS
                             FIRST SESSION
                               __________


                        Wednesday, April 9, 1997

Feith, Douglas J., Feith and Zell, P.C., former Deputy Assistant 
  Secretary of Defense for Negotiation Policy....................   107
    Prepared statement...........................................   110
Ikle, Dr. Fred C., former Director, Arms Control and Disarmament 
  Agency.........................................................   105
Kirkpatrick, Dr. Jeane J., former U.S. Permanent Representative 
  to the United Nations, Senior Fellow, American Enterprise 
  Institute......................................................    91
    Prepared statement...........................................    96
Perle, Richard N., former Assistant Secretary of Defense for 
  International Security Policy..................................    99
Rowny, Lieutenant General Edward L., U.S. Army (retired), 
  International Negotiation Consultant...........................   131
    Prepared statement...........................................   133
Scowcroft, General Brent, President, Forum for International 
  Policy, and former National Security Policy Advisor............   134
Zumwalt, Admiral E.R., Jr., United States Navy (retired), Member, 
  President's Foreign Intelligence Avisory Board.................   124


WEDNESDAY, APRIL 9, 1997 U.S. Senate, Committee on Foreign Relations, Washington, DC. The committee met, pursuant to notice, at 2:11 p.m., in room SD-419, Dirksen Senate Office Building, Hon. Jesse Helms (chairman of the committee) presiding. Present: Senators Helms, Hagel, Smith, Frist, Biden, Kerry, Robb, Feinstein, and Wellstone. The Chairman. The committee will come to order. We have been delaying a little bit, because one of the four witnesses on the first panel has just arrived. We are delighted to see you. Well, I say to my distinguished colleagues, Mr. Robb and Mr. Biden, that today marks the third in this particular round of hearings on the Chemical Weapons Convention. This morning's first panel of witnesses will include the Hon. Jeane Kirkpatrick, known to all of us, former Ambassador to the United Nations; the Hon. Richard Perle, former Assistant Secretary of Defense; the Hon. Fred Ikle, former Director of the Arms Control and Disarmament Agency; and Doug Feith, former Deputy Assistant Secretary of Defense. Former goes before each one of those titles. There will be a second panel of witnesses in support of the Convention. We appreciate your appearing here this afternoon as the committee undertakes further consideration of the CWC. All four of you are distinguished leaders, whose impressive expertise makes your insight crucial to the Senate's consideration of this matter, which involves, as we all know, the future security of the United States. The Senate will benefit greatly from your assessment and guidance regarding the wisdom of ratifying the treaty in its present form--and I would underscore those words. Now, I will say we have had many, many compliments by telephone, fax and otherwise regarding the testimony of three former Secretaries of Defense who were here in person, and one of whom read a letter of opposition to the treaty written by the previous Secretary of Defense. We look forward to your testimony. You are joined in your opposition by a fourth Secretary of Defense, Richard Cheney, and more than 50 generals, admirals and top officials from previous administrations. I think this ought to be sort of a wake-up call to the administration, because the American people, despite efforts to the contrary by some in the news media, the American people are increasingly aware of the defects in this treaty. Now, I am not going to proceed further with my statement, in the interest of hearing our witnesses, but I will defer to the distinguished Ranking Member. If Senator Robb has any comments, since I did not know you were here yesterday, we would be glad to hear from you as well. Senator Biden. Mr. Chairman, thank you very much. Let me begin by publicly thanking you for allowing the second panel. We have a number--seven very distinguished Americans here. I think they probably find--they are probably in the position, not for the first time, but not as frequently as we are, of finding themselves on opposite sides of things they are usually in total agreement with their friends on and vice-versa. I mean we are accustomed to that. That is part of our stock in trade. I appreciate you allowing former National Security Advisor Brent Scowcroft--a former general, as well--General Rowny, and Admiral Zumwalt to be here. I realize the rule is basically 3- to-1, but you were kind enough to us yesterday to allow that. I appreciate it. I want to take just a few minutes to address a few concerns that we raised in yesterday's hearing and that have gone unanswered. The reason I bother to do it I am not sure, because so much has been going on in terms of the non-public side of this process and in terms of negotiations; I am not suggesting that any of the things we have tentatively agreed on among ourselves on this side of the bench and with the administration and Senator Lott and others, that they will satisfy any of the witnesses, but there is no reason they would know they existed. I will just take just a few minutes--probably about 9 I hope. My impression is that one of the reasons you suggested that we have an additional set of hearings was that we have a number of new Members--a very bright, informed group of people, who have taken their jobs on this committee very seriously--and that they did not have an opportunity to participate in previous hearings. My impression is that these new Members truly want to learn about the treaty and base their decision on the facts. I hope that these hearings are giving them an opportunity to be acquainted with them. This afternoon, we are going to hear testimony about the treaty and what it does and does not do. But I used to practice law with a fellow who was one of the best trial lawyers in the State of Delaware, a guy named Sid Bialek. He always used to say when he would teach young lawyers like me how to address a jury, he would say, when you start off with a jury, tell them: Now, jury, keep your eye on the ball. This is not about whether or not my client is a nice guy. It is whether he killed Cock Robin. Keep your eye on the ball. Well, I think one of the things we have to keep our eye on, I say to my colleagues--obviously, not to the witnesses--is that this is a treaty that outlaws poison gas. It outlaws chemical weapons. At least that is its intent. I guess that is the essence of the debate here--whether or not it adequately does that. Entry into force of the Chemical Weapons Convention will mark a major milestone in our effort to enlist greater international support for an important American objective of containing and penalizing rogue states that seek to acquire or transfer weapons of mass destruction. I want to make it clear, based on yesterday's panel, the first one--and it was a distinguished panel--several said, including one former Secretary of Defense, that they were accused of being for chemical weapons and for the use of these. I just want you to know, I know no one who supports the treaty in the Senate who suggests anyone who opposes the treaty is someone who is for the active use of chemical weapons. So I want to make that clear at the outset. I never heard anybody say that, and I am sure the former Secretary would not have said it unless someone had mentioned it to him. But no one on this committee that I am aware of who is for the treaty thinks that. Among the claims, though, that were made yesterday about the CWC is that it would force us to share our most advanced defensive technology with all states, including countries of concern that have ratified the agreement. Iran comes to mind immediately. Another assertion is that it requires us to abandon all controls we have on the proliferation of sensitive technology through mechanisms like the Australia Group. As I reviewed the treaty, I became a little concerned about this initially. With regard to sharing the defensive technologies, some general provisions appeared to back up their claim. But, on close inspection, I believe it reveals that the critics are wrong. First, the provisions in Article X, Paragraph 3, are deliberately vague. The obligation on a party is to facilitate the fullest possible exchange of equipment and information. When read in light of the overriding imperative of Article I, to not assist any party from engaging in activities prohibited by CWC, it seems clear to me and the lawyers that I have consulted that we will not be obliged to provide assistance to rogue states under this provision. Now, just to make sure that I was reading this correctly, I asked for some clarification. I spoke to somebody who obviously would want to clarify it the way I read it, so take it for what it is worth. But the National Security Advisor, Sandy Berger, today sent me a letter. In that letter, he states that any exchange of equipment and technology under Paragraph 3 of Article X, ``is limited to that which we determine would be appropriate and permitted under the convention.'' In addition, Paragraph 7 of Article X requires no assistance, ``other than medical supplies, if we so choose''--if we so choose. I ask that this letter from Mr. Berger be inserted in the record, Mr. Chairman, so that my colleagues can at least understand the position that I hold and that I believe that pertains. The Chairman. Without objection. Senator Biden. Thank you very much. [The information referred to follows:] The White House, Washington, DC, April 9, 1997. Hon. Joseph R. Biden, Jr., U.S. Senate, Washington, D.C. 20510. Dear Senator Biden. In recent days, concerns have been raised about the impact of the Chemical Weapons Convention on the ability of rogue states to acquire advanced U.S. Chemical defense or chemical manufacturing technology. I would like to take this opportunity to set the record straight on these matters. Specifically, concern has been expressed about Paragraph 3 of Article X of the CWC, which states that ``Each Party undertakes to facilitate and shall have the right to participate in the fullest possible exchange of equipment, material and scientific and technological information concerning means of protection against chemi- cal weapons.'' The inclusion of the words ``facilitate'' and ``possible'' underscores that no specific exchange is required and that any exchange which does occur is limited to that which we determine would be appropriate and permitted under the Convention. Moreover, nothing in Paragraph 7 of Article X, which concerns possible responses to requests for assistance, requires us to provide anything other than medical supplies, if we so choose. Concern has also been expressed about whether Article XI of the CWC, which relates to cooperation in the field of chemical activities for purposes not prohibited under the treaty, might force our chemical industry to share dual-use technologies and manufacturing secrets with other nations. Let me assure you that Article XI does not require private businesses to release such proprietary or otherwise confidential business information, nor does it require the U.S. Government to force private businesses to undertake such activities. Let me further assure you that the export controls that we and other Australia Group members have undertaken, as well as our own national export controls, are fully consistent with the CWC and serve to further its implementation. I hope this information facilitates Senate consideration of the CWC. I look forward to continuing to work with you and other CWC supporters to ensure a successful vote on this vital treaty in the days ahead. Sincerely, Samuel R. Berger, Assistant to the President for National Security Affairs. Senator Biden. At this point, Mr. Chairman, you and I have come close to agreement on a condition that would require the executive branch to ensure that countries of concern receive no assistance from us beyond medical antidotes and treatment, and that we would be fully informed and it would be fully in keeping with Article X of the CWC. As for the argument that we would be forced to abandon our current mechanisms to control the proliferation of sensitive technology, the CWC explicitly allows us to keep these protections in place. Article 7 supports chemical trade and technology exchange ``for purposes not prohibited under this convention.'' It also requires that trade restrictions not be, quote, incompatible with the obligations undertaken in this convention. But the CWC is completely consistent with the continued enforcement of the Australia Group controls, which member states use to keep chemical and biological weapons materiel out of the hands of rogue states. The executive branch has said this time and again, and so have our friends and allies in the Australia Group. That helps explain why 26 of the 29 members of the Australia Group have ratified this treaty--everyone except Iceland, Luxembourg and the United States. Last October, at the most recent meeting of the Australia Group, the 29 countries reaffirmed their intention to maintain common export controls, while joining the treaty convention. In a statement issued at the meeting, the Australia Group said, ``the maintenance of effective export controls remain an essential, practical means of fulfilling obligations under the CWC.'' I would also ask unanimous consent that that statement be inserted in the record, Mr. Chairman. The Chairman. Without objection. [The information referred to follows:] Australian Embassy, Paris, October 17, 1996. Australia Group Meeting Australia Group participants held informal consultations in Paris between Oct. 14-17, to discuss the continuing problem of chemical and biological weapons (CBW) proliferation. Participants at these talks were Argentina, Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, the European Commission, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovak Republic, Spain, Sweden, Switzerland, United Kingdom and the United States, with the Republic of Korea taking part for the first time. Participants maintain a strong belief that full adherence to the Chemical Weapons Convention (CWC) and to the Biological and Toxin Weapons Convention (BTWC) will be the best way to eliminate these types of particularly inhumane weapons from the world's arsenals. In this context the maintenance of effective export controls will remain an essential practical means of fulfilling obligations under the CWC and the BTWC. All participants at the meeting welcomed the expected entry into force of the CWC, noting that this long-awaited step will be an important, historic moment in international efforts to prohibit chemical weapons. Participants agreed to issue a separate statement on this matter, which is attached. Participants also welcomed the progress of efforts to strengthen the BTWC in the negotiations taking place in the Ad Hoc Group of BTWC States Parties in Geneva. All Australia Group participating countries are also States Parties to this treaty, and strongly support efforts to develop internationally agreed procedures for strengthening international confidence in the treaty regime by verifying compliance with BTWC obligations. Experts from participating countries discussed national export licensing systems aimed at preventing inadvertent assistance to the production of CBW. They confirmed that participants administered export controls in a streamlined and effective manner which allows trade and the exchange of technology for peaceful purposes to flourish. They agreed to continue working to focus these national measures efficiently and solely on preventing any contribution to chemical and biological weapons programs. Participants noted that the value of these measures in inhibiting CBW proliferation benefited not only the countries participating in the Australia Group, but the whole international community. Participants also agreed to continue a wide range of contacts, including a further program of briefings for countries not participating in the Paris consultations to further awareness and understanding of national policies in this area. Participants endorsed in this context the importance of regional seminars as valuable means of widening contacts with other countries on these issues. In particular, Romania's plans to host a seminar on CBW export controls for Central and Eastern European countries and the Commonwealth of Independent States in Bucharest on Oct. 21-22 and Japan's plans to host a fourth Asian Export Control Seminar in Tokyo in early 1997 were warmly welcomed by participants. Argentina will also host a regional seminar on non-proliferation matters, in Buenos Aires, in the first week of December 1996. France will organize a seminar for French- speaking countries on the implementation of the CWC. This will take place shortly before entry into force of the Convention. The meeting also discussed relevant aspects of terrorist interest in CBW and agreed that this serious issue requires continuing attention. Participants agreed to hold further consultations in October 1997. __________ Australia Group Countries Welcome Prospective Entry Into Force of the Chemical Weapons Convention The countries participating in the Australia Group warmly welcomed the expected entry into force of the Chemical Weapons Convention (CWC) during a meeting of the Group in Paris in October 1996. They noted, that the long awaited commencement of the CWC regime, including the establishment of the Organization for the Prohibition of Chemical Weapons, will be an historic watershed in global efforts to abolish chemical weapons for all time. They also noted that all states adhering to the CWC are obliged to ensure their national activities support the goal of a world free of chemical weapons. All of the participating countries reiterated their previous statements underlining their intention to be among the original States Parties to the CWC. They noted that 24 of the 30 countries participating in the Australia Group have already ratified the Convention. Representatives also recalled their previous expressions of support for the CWC, and reaffirmed these commitments. They restated their view that the effective operation and implementation of the CWC offers the best means available to the international community to rid the world of these weapons for all time. They called on all signatories to ratify the CWC as soon as possible, and on the small number of countries which have not signed the treaty to join the regime and thereby contribute to international efforts to ban these weapons. Representatives at the Australia Group meeting recalled that all of the participating countries are taking steps at the national level to ensure that relevant national regulations promote the object and purpose of the CWC and are fully consistent with the Convention's provisions when the CWC enters into force for each of these countries. They noted that the practical experience each country had obtained in operating export licensing systems intended to prevent assistance to chemical weapons programs have been especially valuable in each country's preparations for implementation of key obligations under the CWC. They noted in this context, that these national systems are aimed solely at avoiding assistance for activities which are prohibited under the Convention, while ensuring they do not restrict or impede trade and other exchanges facilitated by the CWC. Senator Biden. Mr. Chairman, I am convinced the CWC does not require us to share our most advanced defense technology or to abandon existing controls on chemical weapons. Just to make certain of that, I asked Sandy Berger to address this point. I will, in the interest of time, since I asked you to add additional witnesses, ask that the remainder of my statement be placed in the record and conclude by saying this treaty enters in force on April 29th, and time is running short. Mr. Chairman, I hope that we, when we conclude these hearings--as long as I do not prolong them--that at some point we might be able to reach an agreement on how to proceed on the floor. But that is for another time, another moment. I thank the witnesses and I thank the chair. [The prepared statement and the information referred to by Senator Biden follows:] Prepared Statement of Senator Biden Thank you, Mr. Chairman. I wanted to take a few minutes this morning to address a few concerns that were raised in yesterday's hearing and may have gone unanswered. When you called these hearings, you said that it was important that the new members of the committee have an opportunity to learn more about it. And I am pleased to see that our new colleagues have taken your recommendation to heart. My impression is that they truly want to learn about this treaty and base their decision on the facts--and maybe the request by the Secretary of State won't hurt, either. This afternoon we will hear more testimony about this treaty and what it does and does not do, but the core issue is very simple: this treaty outlaws poison gas weapons. The entry into force of the Chemical Weapons Convention will mark a major milestone in our efforts to enlist greater international support for the important American objective of containing and penalizing rogue states that seek to acquire or transfer weapons of mass destruction. Yesterday, we heard three very distinguished former Secretaries of Defense testify on this treaty. Among the claims they made about the CWC are that it would force us to share our most advanced defensive technology with all states, including countries of concern, that have ratified this agreement. Another assertion they made is that it requires us to abandon all controls we have on the proliferation of sensitive technology through mechanisms like the Australia Group. As I reviewed the treaty, I became a little concerned about this. With regard to sharing defensive technology, some general provisions appeared to back up their claim. But close inspection reveals that the critics are wrong. First, the provisions of Article Ten, Paragraph Three are deliberately vague: the obligation on a party is to ``facilitate'' the ``fullest possible exchange'' of equipment and information. When read in light of the overriding imperative in Article One to not assist any party from engaging in activities prohibited by the CWC, it is clear that we will not be obligated to provide assistance to rogue states under this provision. Now just to make sure that I was reading this correctly, I asked the White House to clarify this point for me. Sandy Berger, the President's National Security Adviser, today sent me a letter that confirms this interpretation. In Mr. Berger's letter, he states that any exchange of equipment and technology under Paragraph Three of Article Ten ``is limited to that which we determine would be appropriate and permitted under the convention.'' In addition, Paragraph Seven of Article Ten requires no assistance ``other than medical supplies, if we so choose.'' I ask that this letter from Mr. Berger be inserted into the record, so that my colleagues can reassure themselves that this treaty does not oblige us to share advanced chemical defense technology with rogue states. On this point, the Chairman and I are very close to agreement on a condition that would require the executive branch to ensure that countries of concern receive no assistance from us beyond medical antidotes and treatment. And that would be fully in keeping with Article Ten of the CWC. As for the argument that we would be forced to abandon our current mechanisms to control the proliferation of sensitive technology, the CWC explicitly allows us to keep these protections in place. Article Eleven supports chemical trade and technology exchange ``for purposes not prohibited under this convention.'' It also requires that trade restrictions not be ``incompatible with the obligations undertaken under this convention.'' But the CWC is completely consistent with continued enforcement of the Australia Group controls, which member states use to keep chemical and biological weapons material out of the hands of rogue states. The executive branch has said this time and again, and so have our friends and allies in the Australia Group. That helps explain why twenty-six of the twenty-nine members of the Australia Group have ratified this treaty--everyone except Iceland, Luxembourg and the United States. Last October, at the most recent meeting of the Australia Group, the twenty-nine countries reaffirmed their intention to maintain common export controls while joining the Chemical Weapons Convention. In a statement issued at that meeting, the Australia Group said, and I quote: ``the maintenance of effective export controls will remain an essential practical means of fulfilling obligations under the CWC.'' I ask consent that this statement be inserted into the record. I am convinced that the CWC does not require us to share our most advanced defensive technology or to abandon existing controls on chemical weapons. And just to make certain of that, I asked Sandy Berger to address this point in the letter I referred to. So I ask my colleagues to review this section of the treaty and to examine Mr. Berger's letter and the Australia Group's statement to reassure themselves that the CWC does not obligate us to share advanced defensive technology or chemicals or chemical technologies with countries like China, Cuba or Iran. Turning to another issue, my colleague, Senator Smith, expressed an interest yesterday in the constitutional issues that many critics of the convention have raised. I want to take this opportunity to set the record straight. The convention is constitutional. There is nothing in the convention that requires searches in violation of the Fourth Amendment, takings of property without just compensation, or compelled self- incriminatory testimony Just this morning we received a letter from twenty-two law professors and distinguished attorneys expressing their view that the convention is constitutional, including former Attorney General Elliot Richardson, former State Department legal adviser and Harvard law professor Abram Chayes, Columbia University professor Louis Henkin, and Harvard law professor Laurence Tribe. I ask that this letter be placed into the record. Those who claim that the CWC would permit international inspectors to engage in warrantless searches in any business or private home are dead wrong and are spreading falsehoods. There will be no warrantless searches under the CWC, period. Here are the facts: There are two types of inspections--routine inspections and challenge inspections. Routine inspections apply only to declared facilities--that is, facilities that produce or use scheduled chemicals. In the unlikely event that a declared facility does not consent to be searched, an administrative warrant will be sought from a federal judge or magistrate judge. This is the same procedure that would be used for inspections conducted under Federal health, safety, and environmental laws. Challenge inspections are conducted at the request of another government based on evidence of possible non-compliance. These inspections can take place anywhere in the United States. The administration has agreed that, absent consent, the U.S. Government will have to obtain a criminal search warrant, based on probable cause of criminal wrongdoing, to conduct a challenge inspection everywhere but declared facilities. If a search warrant cannot be obtained for either type of search, the inspection will not take place. And, since the convention allows the United States Government to ``take into account any constitutional obligations it may have with regard to searches and seizures'' when granting access to U.S. facilities, we will not be in breach of our treaty obligations if a challenge inspection is denied due to Fourth Amendment considerations. I ask consent that a letter from the Attorney General to Senator Lott addressing these very issues be made a part of the record. I hope that the Attorney General's assurances, along with the statements of other administration officials, have eased the concerns of those who, like me, strongly believe in the importance of the Fourth Amendment. Again, I would like to thank my colleagues and our witnesses for their time and attention this morning. I hope that these hearings will help to clear up the misconceptions about the Chemical Weapons Convention so that we can move expeditiously to bring this treaty before the full Senate for a vote on ratification. This treaty enters into force on April 29, and time is running short. Thank you, Mr. Chairman. ______ Letter From Attorney General Janet Reno to Senate Majority Leader Trent Lott Office of the Attorney General, Washington DC, March 3, 1997. Hon. Trent Lott, Majority Leader, U.S. Senate, Washington, DC 20510. Dear Mr. Leader: As the public debate over ratification of the Chemical Weapons Convention (CWC) grows in intensity, various concerns regarding the constitutionality of the CWC have come to my attention. Some have suggested that enforcement of the CWC, in order to be effective, will necessarily impinge on Fourth Amendment rights. Specifically, concerns have been raised that the Convention will authorize warrantless, non-consensual searches or that searches will be conducted pursuant to warrants that lack probable cause. The CWC and the draft implementing legislation contemplate no such circumstances. All inspections will be conducted consistent with the requirements of the Fourth Amendment. Let there be no doubt, the Department of Justice stands fully behind both the goals and the specific terms of the CWC. The Convention, along with the proposed legislation, strikes the proper balance between effective efforts to eliminate the scourge of chemical weapons and to preserve our constitutional rights. Over the course of the past four years, the Justice Department has closely scrutinized CWC and has assisted in the drafting of its implementing legislation. Our focus has been consistently on the necessity of adherence to constitutional requirements. In testimony given on September 9, 1996, before the Senate Judiciary Committee's Subcommittee on the Constitution, Richard Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, explained how inspections would be conducted consistent with the Fourth Amendment. We expect the vast majority of routine inspections will be conducted with consent. On the few occasions where consent has been withheld, administrative search warrants will be sought for routine inspections. In the case of challenge inspections, again, we expect consent to be the rule. Declared facilities selected for a challenge inspection would be subject to inspections in the same manner as provided under the CWC and implementing legislation for routine inspections. However, a criminal search warrant will be applied for in every case where consent is denied to a challenge inspection of undeclared facilities. The convention, in Annex 2, pt. X, para. 41, specifically allows the U.S. Government, in granting access to facilities identified for challenge inspections, to ``take into account any constitutional obligations it may have with regard to proprietary rights or searches and seizures.'' Hence, in the rare event that the Fourth Amendment would pose a bar to a search of premises identified for a challenge inspection, the United States would remain in full compliance with its obligations under the CWC. I realize that many of the detractors of the Convention are principled in their opposition. Their constitutional concerns are, however, unfounded. The dictates of the Fourth Amendment have been scrupulously honored in the drafting and will be rigidly followed in the implementation. Finally, no legitimate Fifth Amendment issues are raised with respect to the record keeping or disclosure requirements. The provisions of the Convention and the draft implementing legislation neither require nor contemplate compelling anyone to incriminate himself. And, both the CWC and draft legislation in no way authorize the taking of private property without compensation. It is my hope that the Senate will consider the Convention in an expeditious manner and will consent to its ratification. Sincerely, Janet Reno. __________ April 9, 1997. Hon. Joseph R. Biden, Jr, Minority Leader, Committee on Foreign Relations, Washington, DC. Dear Senator Biden: The undersigned lawyers, former government officials, and professors of constitutional and international law write to urge the Senate to give its prompt advice and consent to the ratification of the Chemical Weapons Convention (CWC). The Senate's decision will have profound ramifications for United States leadership in controlling the spread of weapons of mass destruction. Moreover, the Convention will enter into force on April 29 whether or not the United States ratifies, but if it does so without U.S. ratification, American participation in the staffing of the Organization for the Prohibition of Chemical Weapons (OPCW) and in the inspector corps will be severely reduced. Therefore, prompt action is essential. The CWC is a global commitment to eliminate an entire category of weapons of mass destruction and to verify their continued absence. The treaty's backbone is the most thoroughgoing international law enforcement system yet devised, providing for verification of the destruction of chemical weapons stockpiles and for monitoring of chemical plants to prevent future proliferation. The verification system includes declaration of precursor chemicals that could be made into chemical weapons, routine inspections at facilities that are declared to possess such precursors, and ``challenge'' inspections to confirm compliance at any facility or location. President George Bush, under whose administration the treaty was completed and signed, characterized the Convention as ``an entirely new concept for overcoming the great obstacle that has impeded progress in the past toward a full chemical weapons ban.'' We would have thought that U.S. ratification of this Convention was a foregone conclusion. Unfortunately, at the last minute, objections have been raised concerning the constitutionality of the Convention's elaborate verification system under the Fourth Amendment. Treaty opponents have circulated the claim that, under the CWC, foreign inspectors would be empowered to intrude into the privacy of American citizens and businesses in violation of their Fourth Amendment rights. Much of this commentary based on a letter from Judge Robert Bork to Senator Orrin Hatch stating that ``there are grounds to be concerned'' about the compatibility of some of the provisions of the Convention with the Constitution. Judge Bork's letter concedes that he is ``not intimately familiar with the provisions of the Convention,'' an acknowledgment that is borne out by the inaccuracy of his description of the Convention in the body of his letter. The short answer to these contentions is that the Convention itself provides that each State Party shall implement its provisions ``in accordance with its constitutional processes,'' (Art. VII, par. 1), and the challenge inspection provisions further require that inspections must be consistent with ``any constitutional obligations * * * with regard to * * * searches and seizures.'' (Verification Annex, pt. X, par. 41). Thus, Congress, which must pass domestic legislation to implement the inspection provisions of the Convention, can do so in a manner that fully protects the rights of American citizens under the Fourth Amendment without in any way violating the international obligations the United States will undertake under the treaty. A vast quantity of scholarly and governmental discussion on the subject has affirmed virtually unanimously that the CWC fully respects U.S. constitutional protections of privacy. Indeed, every scholar willing to put his or her opinions on the CWC to the test of detailed public review agrees that the treaty manifests extraordinary care in balancing the demands of privacy against the requirements for effective verification of the Convention. If the Senate fails to give its advice and consent to the CWC, an extraordinary achievement of over fifteen years of bipartisan effort will be frustrated; and a major opportunity to prevent the proliferation of chemical weapons will have been lost. If the Senate wishes to reject the treaty, that is of course its prerogative. But it should not do so on the spurious ground that it conflicts with the Constitution. Sincerely, Professor M. Cherif Bassiouni, DePaul University College of Law Professor Richard B. Bilder, Burrus-Bascom Professor, University of Wisconsin Law School Professor Thomas Buergenthal, Lobingier Professor of Comparative Law & Jurisprudence, the George Washington University Law School Professor George Bunn, Dean Emeritus, Professor Emeritus, University of Wisconsin Law School Professor David D. Caron, University of California at Berkeley School of Law Abram Chayes, Professor of Law, Emeritus Felix Frankfurter Harvard Law School Professor Lori Fisler Damrosch, Columbia University School of Law Professor John Hart Ely, Richard A. Hausler Professor University of Miami School of Law Phil Fleming, Crowell & Moring Professor Thomas M. Franck, Murray and Ida Becker Professor, Director, Center for International Studies, New York University School of Law Professor Michael J. Glennon, University of California at Davis School of Law Professor Barry Kellman, DePaul University College of Law Professor John F. Murphy, Villanova University School of Law John B. Rhinelander, Shaw, Pittman Professor Anne-Marie Slaughter, J. Sinclair Armstrong Professor of International, Comparative and Foreign Law, Harvard Law School Professor Laurence H. Tribe, Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School Professor Louis Henkin, University Professor Emeritus, Special Service Professor, Columbia University School of Law Professor David A. Koplow, Director, Center for Applied Legal Studies, Georgetown University Law Center Professor Peter Raven-Hansen, Associate Dean, Academic Affairs, Glen Earl Weston Research Professor, George Washington University Law School Elliot L. Richardson, Esq., Milbank, Tweed, Hadley & McCloy Professor Edwin (Rip) Smith, Leon Benwell Professor of Law and International Relations, University of Southern California Law School Professor Burns H. Weston, Bessie Dutton Murray Distinguished Professor, Associate Dean, International and Comparative Legal Studies, University of Iowa College of Law The Chairman. Let us have brief statements by our other Senators here, if you wish. Senator Robb. Senator Robb. Thank you, Mr. Chairman. You were kind enough to make reference to the fact that I came in just at the conclusion of yesterday afternoon's hearing, and you had not recognized me as you were banging the gavel. I thank you for that acknowledgement. I had raced up from an armed services hearing, trying to sort out the dangers posed by Russian submarines and other submarines, in order to get here. I want to assure you, however, that both the portions of yesterday's meeting, in the morning that I had to leave and the portion that I missed yesterday afternoon, were replayed on C-SPAN, beginning about midnight and ending about 2:45 a.m. And, Mr. Chairman, to demonstrate my commitment to the cause, I want you to know that I stayed up and watched all of the hearing that I missed. Regrettably, I am going to have to go to an intelligence hearing today, so I will miss more. But I am sure that it will be rebroadcast. On a more serious vein, I did attend all of the hearings last year. I thought they were some of the best and most informative. There have been excellent witnesses on both sides of the question. I committed myself to the affirmative side. I thought that was the more persuasive argument last year. I have not changed my position. But I think that the distinguished witnesses that we have had for these hearings have done more to give the American people, and certainly the members who are going to vote on these issues, a better understanding of what the treaty does and does not do. For that, I commend you, and I thank you. The Chairman. Thank you very much. Senator Frist. Senator Frist. Thank you, Mr. Chairman. I want to congratulate you for bringing forth such outstanding witnesses in this series of hearings. I want to thank each of you for being with us today. I continue to struggle with the issues that we are talking about--the verification, the extent of coverage, global coverage, enforceability. Part of it is based on my experience of being in chemistry labs myself, whether it is organic chemistry or inorganic chemistry, which I had to do to become a physician, and remembering very vividly people saying, ``right in this room, in this little laboratory, we could do such destruction if we wanted to.'' Then I come back today, in terms of that verification and enforceability, and I look forward to hearing from each of our witnesses as we systematically continue our addressing these very important issues. The Chairman. Thank you. Briefly, please, ma'am, and sir. After you two, if any other Senators come in, I am going to not notice their arrival either. Senator Feinstein. Senator Feinstein. Just very quickly, Mr. Chairman, if I might, and to our distinguished witnesses. I think the thing that would be most helpful to me, and perhaps you can cover this in your testimony, would be if you could substantiate your comments on your belief of non- verification, why you believe it is better to stay out of this kind of a treaty and why you think that, with our staying out of it, we would have a better opportunity (a) to make a moral commitment and (b) a real commitment and (c) how verification would be improved if we are not in the treaty. I thank you, Mr. Chairman. The Chairman. I am sure they will answer that in due time. Briefly, please. Senator Wellstone. Mr. Chairman, I feel like I am under pressure to be brief. The Chairman. You are. Senator Wellstone. So I will be brief. I know we have got a long hearing today, and I am only going to be able to stay for the first part. I apologize to the others. So I thank the Chair for the hearing and I thank each of you for being here. The Chairman. Do you have anything to say, Chuck? Senator Hagel. No. Thank you. The Chairman. Ambassador Kirkpatrick, you will be the lead- off, please. STATEMENT OF DR. JEANE J. KIRKPATRICK, FORMER U.S. PERMANENT REPRESENTATIVE TO THE UNITED NATIONS, SENIOR FELLOW, AMERICAN ENTERPRISE INSTITUTE Ambassador Kirkpatrick. Thank you, Mr. Chairman. The Chairman. Thank you for coming. Ambassador Kirkpatrick. Thank you very much, Mr. Chairman, for inviting me to testify before this distinguished committee on this important subject. It is an important subject, and the Senate's decision will be more important even. I have followed this and some comparable issues with great interest since I served as U.S. Permanent Representative to the United Nations under Ronald Reagan. At that time, there were several such covenants that either had been passed or were being considered. It was then that I became aware of some of the facts which have ever since caused me to have a lot of questions and doubts about such covenants. It was then that I first became aware of the fact that the Nuclear Nonproliferation Treaty was being used to achieve very different purposes than those for which it was undoubtedly intended. It was then I became aware of the fact that it was being used to acquire and spread the technology and products needed to produce nuclear weapons rather than to prevent their spread. It was even then understood among the informed public in the United Nations context that a country such as Iraq, by signing the Nuclear Nonproliferation Treaty, the NPT, acquired a right to share technology which could then be used to produce nuclear products. Now, it is generally understood by such countries that the shortest route to a nuclear capacity is through the NPT, the Nuclear Nonproliferation Treaty. Iran is traveling that road today. We and other signatories are helping to finance their development of a nuclear capacity, and we know it. Secretary of State Christopher made an interesting comment on this subject 2 years ago, when he said, in terms of its, ``organization, programs, procurement and covered activities, Iran is pursuing the classic route to nuclear weapons, which has been followed by almost all states that have recently sought a nuclear capability.'' Now, more recently, there have been several public reports of U.S. Government efforts to persuade Russia not to assist Iran in the development of a nuclear capacity and of operational reactors. There have been reminders from Russia that Iran is a signatory of the NPT and, as such, has a right to assistance in developing a nuclear capacity for peaceful use. I believe, Mr. Chairman, that there has been far too little attention given to this problem, the principal source of nuclear proliferation. It was also in my U.N. years that I first became really sensitive to the issue of the composition of the governing board of the IAEA. Senator Biden may think I am not keeping my eye on the ball. But I assure you, Senator Biden, I am. As for the composition of the governing board of the IAEA, Iraq, as I am sure many of you know, sat on the governing board of the IAEA through just exactly that period that it was violating its own promises not to undertake development of nuclear weapons. It also was violating, at that very moment, already existing promises not to use poison gases in war. Iran and Iraq are two of the countries in the world that have already violated the Geneva Protocol against using poison gases. As we all understand, I think, there is already an operative treaty which forbids the use in war of, ``asphyxiating, poisonous or other gases,'' which is the Geneva Protocol of 1925. Now, Mr. Chairman, many people speak of the Nuclear Nonproliferation Treaty and its verification regime as if it had prevented the proliferation of nuclear weapons. If that were the case, Mr. Chairman, Iraq, North Korea, India, and Pakistan, among others, would not today have either advanced programs for producing nuclear weapons or the weapons themselves. But, of course, they do. There is a kind of strange silence which shrouds the facts of nuclear proliferation. Even the U.S. Government has been strangely reluctant to face facts about the failure of the Nuclear Nonproliferation Treaty to prevent proliferation. But if our government and our allies had faced facts about the nuclear proliferation facilitated by the NPT, they would presumably not have reproduced Article XI and other key loopholes in the Convention on Chemical Weapons which have permitted and facilitated proliferation. But, of course, in the Convention on Chemical Weapons, they have paragraphs which call for sharing technology among the signatories and forbid efforts to restrict or impede trade in development and promotion of scientific and technological knowledge in the field of chemistry--for peaceful purposes, to be sure. I think the spirit of the CWC is, ``share now'' the treaty counsels, ``verify purposes and intentions later.'' Mr. Chairman, my years at the United Nations sensitized me to the composition of governing boards of the United Nations. All too often, the composition of those governing boards simply reflect the bloc system and its operation in the U.N.; it dominates many processes of the U.N. The bloc system is purely geographical and political in character, and takes little or no account of technical competence or democratic representation-- or of who pays the bills, I might add. I believe that the Senate should take specific note of the composition of all the international boards entrusted to enforce international covenants, boards which make important decisions affecting our country. The CWC governing board will be chosen on a basis that gives little weight to competence, because the IAEA's governing board is used as a model. The IAEA's verification regime has not been able either to verify or to enforce the Nuclear Nonproliferation Treaty. As we can learn hard lessons about failures of the IAEA regime to adequately verify violations of the NPT, so, Mr. Chairman, can we learn some hard lessons from the IAEA experience, about the non-enforceability of just such treaties. What happens when violations of the Nonproliferation Treaty are discovered? This is a very important question. There are the questions of verifiability and enforceability. What happens when a nation which has signed the Nuclear Nonproliferation Treaty is discovered to be in violation? The answer is: Not much. Iraq has suffered some penalties because of its violations of the NPT. But it has suffered, because it invaded a neighbor--namely, Kuwait--not because it cynically violated the NPT norms. I believe that the composition of the governing board of the Chemical Weapons Convention, the OPCW, guarantees that countries with the greatest technical knowledge will be in a permanent minority in that decisionmaking group. The important decisions will be made by the OPCW; but the United States and Western Europe, the most highly industrialized and technically sophisticated countries, will be in a permanent minority in that group. The United States has no guaranteed seat in that governing body. Neither the amount of our financial contribution nor our technical competence guarantees us a seat. We will compete for a seat with the other most highly industrial countries for 10 of 41 seats. Asia will have nine. There will be one rotating seat. Latin America and the Caribbean will have seven. Africa will have nine. Eastern Europe will have five. What we in the U.N. call WEOG, Western Europe and others group--and we fall in that group--will have 10. I am not certain, Mr. Chairman, where Russia falls in these groups today. Probably in Eastern Europe, but maybe not. There would have to be some special provision made. That is important, since, if indeed Russia ratifies the treaty, it is eligible to sit on the OPCW. It may not. It has signed but not yet ratified, of course. But the composition of the OPCW explains why its decisions are not likely to take account of the best technical information available. Not only that, the method of composition of that group explains why most efforts by U.N. bodies to develop operational groups fail. Because the members of the group are chosen on the basis of criteria which are irrelevant to their ability to perform, with technical competence, the task of the group. From experience with the NPT and the IAEA, I believe we have had a great deal of opportunity to learn about the problems of verification and enforceability. The IAEA's verification procedures, of course, require prior notification and consent of the party to be inspected including the parties inspected, the right to approve or veto the composition of the teams of inspectors. Now, we all know that Iraq's nuclear projects and its progress were discovered only as a consequence of their defeat in the Gulf War. Iraq's violations of NPT have been discovered again and again, as we keep finding things we did not know and new information about aspects of their program that we were unaware of by virtue of our access through the armistice and their defeat in the Kuwaiti War. It was not the result of IAEA inspections. Routine procedures for verification did not reveal Iraq's large nuclear project. Now, as everyone knows, it is much simpler to develop chemical weapons than nuclear weapons. It is much easier to procure and hide the components. As everyone knows, the technology required in developing nuclear weapons is much more complex and esoteric than chemical weapons. Everyone knows that chemical weapons rely largely on dual-use substances that are common in everyday life. Chemical weapons can be manufactured with uncomplicated technology. That is, I think, why, in the 1980's, when I was at the United Nations, it was commonplace to hear Third World spokesmen refer to chemical weapons as the Third World's nuclear bombs. Even very technologically underdeveloped countries could produce them. It was suggested often that it was not quite cricket for the devel- oped countries to try to deprive the least developed countries of the Third World weapons of mass destruction. I do not think any of us need weapons of mass destruction, quite frankly, to prove that we can survive in the contemporary world. Mr. Chairman, I believe that the Senate should face the fact that ratifying this treaty will not prevent the manufacture or use of chemical weapons. That is precisely the point. The Chemical Weapons Convention is neither verifiable nor enforceable. Proponents sometimes say, so it is not perfect. Is not something that is not perfect better than nothing at all? I do not think that is necessarily so, particularly since the countries that have signed and ratified the Convention are countries about which we would never worry about using chemical weapons. The countries that have neither signed nor ratified are countries that we are most likely to worry about--the so- called rogue states or outlaw nations--Syria, Iraq, North Korea, Libya. Those are the countries we worry about. We do not worry about Britain, France, the WEOG, and the Australia Group. I do not worry a bit about the Australia Group. Those are our best friends. They do not need to worry about us either, I might say. The treaty's advocates simply ignore the fact that the treaty cannot help us monitor the production of these weapons by states most likely to use chemical weapons. Why, then, have so many countries signed on to a treaty that can offer so little protection? I believe, Mr. Chairman, that it is simply wishful thinking, frankly. I believe it is hoping and pretending that something that you want to be verifiable, enforceable, and universal may actually turn out to be that, in spite of the fact that, from experience, we know it is not and will not. We should also face the fact that signing the treaty will not prevent signatories of bad will from breaking their promises not to produce noxious gases. We know that Russia has in fact already, in its continuing production of noxious gases, broken two sets of promises--not the promises of the treaty, but bilateral promises to the United States involving the production of nerve gases and the failure to destroy gases which they had agreed to destroy. Countries do not necessarily keep their promises. Advocates of the treaty argue it would surely do some good and, at the very least, would do no harm. Mr. Chairman, I believe that the Chemical Weapons Convention will actually make the world more dangerous. That is why I came today. I believe the treaty will hasten the spread of advanced chemical weapons, as I believe a comparable treaty has hastened the spread of the technology for nuclear weapon construction--and that is not all. Mr. Chairman, I recently asked a French friend, who happens to be visiting just now, did the Maginot Line do France any harm in World War II? Well, I think most French think so. It gave them the impression that they had dealt with a dangerous threat--an invasion from the east, across their borders--when in fact they were in as much danger as before. The Maginot Line created a comforting illusion which lulled France into a false sense of security. I believe the world is probably less dangerous today, Mr. Chairman, than at any time in my life--or certainly than in most of my life. I cherish this sense of lessened threat. I love it. But I believe we are not so safe that we can afford to create a false sense of security by pretending that we have eliminated chemical weapons. President Clinton said in one statement that I read: ``We will have banished poison gas from the Earth.'' Well, that is poetic license or a politician's license or perhaps a President's license, but it surely is not an accurate statement about what will be the case. The countries most likely to produce and use poison gas are unaffected by this treaty. I think the Senate, personally, should reaffirm the U.S. sense of responsibility and our commitment to that responsibility toward preserving a peaceful world and decline to ratify this treaty unless or until progress is made toward making it more verifiable, enforceable, and universal. There is still a long way to go. Thank you, Mr. Chairman. [The prepared statement of Ambassador Kirkpatrick follows:] Prepared Statement of Dr. Jeane J. Kirkpatrick Mr. Chairman, thank you for inviting me to testify before this distinguished committee today. The subject of today's hearing is important. The Senate's decision will be more important. I have followed this issue with interest since my tenure as U.S. Permanent Representative to the United Nations under Ronald Reagan brought several such proposed covenants to the forefront of my attention. It was then that I first became aware of the fact that the Nuclear Nonproliferation Treaty (NPT) was being used to achieve very different purposes than those for which it was intended--that it was being used to acquire and spread the technology and products needed to produce nuclear weapons rather than to prevent their spread. It was even then understood among the informed public that by signing the treaty a country--such as Iraq--acquired a ``right'' to share technology needed to produce nuclear products. By now, it is generally understood that the shortest route to a nuclear capacity is through the NPT. Iran is traveling that road today. We and other signatories are helping finance their development of a nuclear capacity. Secretary of State Warren Christopher said on this subject, ``Based upon a wide variety of data, we know that since the mid-1980's, Iran has had an organized structure dedicated to acquiring and developing nuclear weapons.'' He added that in terms of its ``organization, programs, procurement, and covert activities, Iran is pursuing the classic route to nuclear weapons which has been followed by almost all states that have recently sought a nuclear capability.'' [F.N. Bulletin of Atomic Scientists, 7/95. Vol. 51, Issue 4, page 23.] More recently there have been several public reports of U.S. Government efforts that persuade Russia not to assist Iran in the development of its nuclear capacity and reminders that Iran--a signatory of the NPT--had the right to assistance in developing a nuclear capacity for peaceful use. There has been far too little public attention to this--the principal source of nuclear proliferation. It was also in my U.N. years that I first noticed the composition of the governing board of the International Atomic Energy Agency (IAEA). Iraq sat on the governing board of the IAEA and were at that very time violating promises not to undertake the development of nuclear weapons--promises not to use poison gases in war. [Iraq did both.] Several of the same countries have already violated commitments not to use poison gas in war, for, as we all understand, there is already an operative treaty which forbids the use in war of ``Asphyxiating, Poisonous or Other Gases.'' It is the Geneva Protocol of 1925. Mr. Chairman, many people speak as if the Nuclear Non-Proliferation Treaty and verification regime had prevented proliferation of nuclear weapons. If that were the case Iraq, North Korea, India, Pakistan would not have either bombs today nor advanced programs for producing them. But they do. A strange silence shrouds the facts of nuclear proliferation. Even the U.S. Government has been strangely reluctant to face the facts about the failure of the NPT to prevent proliferation. But it is an open secret that the Nuclear Non-Proliferation Treaty has been a source of proliferation of nuclear technology. It is also perfectly clear that the CWC will facilitate the spread of chemical weapons through provisions in Chapter Eleven of the treaty that call on countries with a developed chemical industry to share their advanced technology with less developed countries. If our government and our allies had faced facts about the nuclear proliferation facilitated by the NPT they would presumably not have reproduced in Article XI the loopholes that have been permitted and facilitated it. But they have in the paragraphs which call for sharing technology among the signatories and forbid efforts to ``restrict or impede trade and development and promotion of scientific and technological knowledge in the field of chemistry * * * '' for peaceful purposes to be sure. Share now, the treaty counsels, verify purposes and intentions later. My years at the United Nations also sensitized me to the composition of the governing boards of U.N. bodies. All too often the composition of governing boards simply reflects the bloc system which dominates many processes in the United Nations. The bloc system is purely political/geographical in character. It takes little or no account of technical competence and standards, of democratic representation, or of who pays the bills. The Senate should take careful note of the IAEA governing board. Iraq served on the governing board of the IAEA the entire time that it was working to develop nuclear weapons in violation of its pledge. It is not the only known violator to be selected for that board. The Chemical Weapons Convention (CWC) governing board will be chosen on a basis that gives still less weight to competence. The IAEA's verification regime often regarded as a model has not been able either to verify or to enforce the NPT. As we can learn hard lessons about failures of the IAEA regime to adequately verify violations of the NPT, so we can learn about the non- enforceability of such Treaties. What happens when violations are discovered? Not much. Iraq has suffered because it invaded a neighbor, not because it cynically violated NPT norms. The composition of the governing body of the Organization for the Prohibition of Chemical Weapons (OPCW) guarantees that countries with the greatest technical knowledge will be in a permanent minority. There are no permanent members on the OPCW and no vetoes. The composition of the Executive Council of the OPCW explains why the U.N. bodies fail at operational efforts, through their validity as representational bodies. From experience with the NPT and the IAEA we have had the opportunity to learn a good deal about the problems of verification and the weaknesses of the verification regime that was developed to prevent the proliferation of nuclear weapons and the inadequacy of the IAEA's verification procedures that require prior notification of the party to be inspected, consent of the inspected party, and a right to approve or veto the composition of the team of inspectors. Iraq's large, advanced nuclear development project was discovered only as a consequence of their defeat in the Gulf War NOT as a result of IAEA inspections. Likewise, North Korea's large nuclear development. And as everyone knows, it is much simpler to develop chemical than nuclear weapons, much easier to procure and to hide the components. Nuclear weapons require weapons grade plutonium. The technology required in developing nuclear weapons is more complex and esoteric. But chemical weapons rely largely on dual use substances common in everyday life, small space, and uncomplicated technology. That is why in the 80s chemical weapons were sometimes called the ``Third World's nuclear bombs.'' Even very technologically underdeveloped countries could produce them. The Senate should face the fact that ratifying the treaty will not prevent the manufacture or use of chemical weapons. The Chemical Weapons Convention is neither verifiable nor enforceable. Proponents attempt to dismiss the many loopholes in the treaty with the assertion that nothing is perfect. But perfection is not the question. Proponents seek to minimize the fact that the countries with the most highly developed programs either have signed but not ratified the treaty--Russia, China, Cuba, Iran, Vietnam--or have not signed at all-- Syria, Iraq, North Korea, Libya--but signing does not solve the problem. Signing will not prevent signatories from breaking their promises not to produce noxious gases as Russia has recently broken a promise to the United States. And the treaty's advocates simply ignore the fact the treaty cannot help us monitor the production of the states most likely to use chemical warfare. Why then have so many countries signed on to a treaty that can offer so little protection? Only wishful thinking encourages it. It is as if pretending that the treaty were verifiable, enforceable, and universal would make it so. But it doesn't. It also will not prevent signatories from breaking their promises not to produce noxious gases as Russia has recently done. But surely it would do some good, treaty advocates argue. At the very least we can say it would do no harm. Mr. Chairman, it is because I believe the CWC would actually make the world more dangerous that I am here. I believe the treaty will hasten the spread of advanced chemical weapons as it has nuclear technology. Americans working for ratification of the CWC should take a hard look at what happened in the United Nations Human Rights Commission meeting in Geneva this week. The United States could not even get a discussion of China's human rights violations put on the agenda. For the seventh straight year China was able to prevent discussion--much less censure--of its deeply shocking treatment of Tibet and all manner of dissidents and to do so by a comfortable 27 to 17 margin (with nine abstentions). China won the vote with strong Third World support, including some close U.S. associates such as Egypt, India and Indonesia. China's chief delegate, Wu Jianmen, explained later the vote showed that the Third World ``identified'' with China. He also emphasized the failure of some close U.S. allies (France, Germany, Italy, Spain, Japan, Greece, Italy, Canada and Australia) to co-sponsor the ``Western'' resolution this year, because, he said, they ``want dialog and cooperation and not confrontation.'' In truth China won the vote because there is weak support for democracy beyond North America, Europe, and a few Asian and South American states, and also because China mounted a tough worldwide campaign--that included arm-twisting and threat of economic consequences. A belated U.S. effort to rally support--including personal intervention by Secretary of State Madeleine Albright--did not help much. This shameful outcome was not a defeat for the United States or the countries sponsoring the resolution. It was a defeat for humane values and rational discussion of deeply serious moral and political issues. It was a defeat for victims of repression and for the very purposes for which the United Nations was founded. This outcome in the Human Rights Commission is a harsh reminder that the United States often cannot win votes for its basic values and interests in U.N. arenas--even when the issue is purely symbolic and the U.S., itself, and most of our principal allies are present. The balance of power would be much less favorable to the United States in the governing body that will implement the Chemical Weapons Convention. In pressing the Senate to ratify the CWC quickly, before the treaty enters into effect on April 29, the Clinton administration has argued that by getting in on the ground floor the United States will be assured of having an important voice in shaping the structure and function of the organization. But that is not so. The composition and structure of the governing body of the CWC are prescribed in the treaty. The treaty, itself, hands us a stacked deck with which to play for influence. The United States, Great Britain, France, Russia and China (that is, the permanent members of the Security Council) are all guaranteed seats on the Human Rights Commission but not on the Executive Council that will administer the CWC. The 41 members of that Executive Council will be designated from the U.N.'s standard geographical groupings and elected by all the signatories of the CWC for 2 year terms. There will be no permanent members and no vetoes. The United States is a member of the WEOG (Western European and Other Group) which is allotted 10 seats on the 41 member Executive Council that also provides nine seats for Asia, seven for Latin America and the Caribbean, nine for Africa, five for Eastern Europe plus one rotating seat. To win one of the 10 WEOG seats for a 2-year term, the United States will need to compete with the other Western industrial democratic nations who altogether will have only 10 of 41 seats (or 15 of 41 seats if we count Eastern Europe; or 16 of 41 with all of Europe plus Japan). In this competition our friends in the European Union will have 15 votes to our one vote. Therefore, the United States would frequently fail to gain a voice in the decisions of the Executive Council. Neither the amount of our financial contribution nor our technical competence would guarantee us a seat. The draft of the CWC supported by the Reagan administration guarded against this possibility. It provided that permanent members of the Security Council would be members of the Executive Council that implements the treaty. This would have guaranteed representation of the most powerful nations and those with the most highly developed chemical industries. The CWC which is now before the Senate operates on the basis of one country, one vote. The fact that the United States might have no voice in setting policy for implementing the CWC but would surely be bound by its decisions is one important reason that the U.S. Senate should not ratify this treaty. There are others. Most of the countries in the Human Rights Commission have ratified the Declaration on Universal Human Rights. Will the United States ratifying the CWC make the world safer? Mr. Chairman, did the Maginot Line do any harm to France in World War II? Most French think so. It gave them the impression that they had taken care of a dangerous threat: an invasion from the East; when in fact, they were in as much danger as ever. The Maginot Line created a comforting illusion which lulled France into a false sense of security and facilitated Hitler's conquest. The world is less dangerous today than during most of my lifetime. I cherish this sense of lessened threat. But we are not so safe we can afford to create a false sense of security by pretending that we have eliminated the threat of chemical weapons. President Bill Clinton said, ``We will have banished poison gas from the Earth.'' It will not be so. We had better do some hard thinking about how to defend ourselves and the world against the poison gases that have been and will be produced whether or not we ratify. I think the Senate should reaffirm the U.S. sense of responsibility and commitment to a peaceful world and decline to ratify this treaty unless or until it becomes verifiable, enforceable, and universal. There is a long way to go. Thank you. The Chairman. Thank you, Madam Ambassador. Let me say to the visitors here today and those who are watching on television that I have been to several functions that shared the podium with the distinguished Jeane Kirkpatrick, who, by the way, is a Senior Fellow of the American Enterprise Institute and, as almost everybody knows, she is a former U.S. Ambassador to the United Nations. But everywhere I go or have gone, where she has appeared likewise, I have sensed that she is one of the most respected women in America. We are honored to have you with us today. Ambassador Kirkpatrick. Thank you, Mr. Chairman. The Chairman. Now, we move to Mr. Richard N. Perle, who is one of the best informed individuals I know. He is formerly Assistant Secretary of Defense for International Security Policy. I do not know how many times I have called on Richard for information and guidance on various issues. We are certainly glad to have you here, and you may proceed, sir. Senator Biden. Mr. Chairman, you do not have any idea how many times we have regretted that you called on him, because he is so persuasive. I hope you are not so good today, Richard. The Chairman. Just watch him. STATEMENT OF RICHARD N. PERLE, FORMER ASSISTANT SECRETARY OF DEFENSE FOR INTERNATIONAL SECURITY POLICY Mr. Perle. Mr. Chairman, thank you very much for inviting me. Senator Biden, I can assure you I would not have come today if I did not think there was a very strong case to be made. I will try to take seriously your injunction to keep my eye on the ball. In fact, I think my colleague and friend Jeane Kirkpatrick clearly identified the ball when she described the way in which the Nonproliferation Treaty, without anyone ever having intended that it should work this way, had the effect of making technology for the production of nuclear material far more readily available than it might have been otherwise--a defect that unhappily is reproduced like a computer virus in the Chemical Weapons Convention. Before I get into the key point I want to make today, let me say that I have chosen to focus on one issue--one rather narrow issue. I think that is in fact the ball that Senator Biden has in mind. My colleague Doug Feith, from whom you will hear shortly, has prepared a more comprehensive statement that deals with other aspects of the treaty in a thoroughly convincing and understandable way. I agree entirely with the points that Doug will soon be making. But I want to restrict myself to one key point. That is, as it happens, the point that Sandy Berger was concerned to deal with in the letter with which he provided you. I take that letter as confirmation of the fact that the National Security Adviser, like others, have begun, under the exigency of imminent action on this treaty, to understand that there are problems in the treaty that need to be addressed. I wish they had been addressed at an earlier stage in the proceedings. That is to say, while the treaty was under negotiation. Because had the ball that Sandy Berger has now found been seen earlier, we would have a treaty without Article X in it, and probably without Article XI in it. Had we been more attentive, had we learned the lesson of the Nonproliferation Treaty, had we thought through the means by which countries may in future acquire a meaningful military chemical weapons capability, I am quite convinced that we would not have allowed Article X to become a part of this treaty. What Jeane had to say about the Nonproliferation Treaty applies to this Convention in spades. The reason why I say in spades, Mr. Chairman, is that the production of nuclear material clandestinely from facilities that are intended for peaceful purposes and that are monitored by the IAEA--not perfectly, but monitored--is a very difficult thing to accomplish. Building nuclear power plants is not easy. Operating them is not easy. Handling nuclear material is not easy. Chemical weapons, on the other hand, pose an entirely different set of issues. The production of lethal chemicals which can be used for military purposes is not difficult. Any facility capable of producing insecticides, any facility capable of producing fertilizer can, with relatively minor modifications--well within the capacity of any country that has an insecticide or a fertilizer plant--be converted to the production of chemicals. Indeed, some of the chemicals of concern are not even barred under this treaty, because they are already so widely spread around the world. So the acquisition of lethal chemicals for military purposes is easy. But the possession of lethal chemicals is not, by itself, sufficient to constitute a military capability. Because in order to use chemical weapons for military purposes, you have to be able to protect your own troops. The soldiers that go into the field, the pilots that drop canisters, the artillerymen that launch chemical shells all need to be protected themselves. Otherwise, their missions become suicidal. They are difficult enough even if they are protected themselves. So what is difficult about acquiring a chemical weapons capability, a military capability, is not the offense; it is the defense. The offense is easy. The defense is very hard. Article X of this treaty says that the parties to the treaty, the signatories, will be entitled to receive help in the development of the hard thing--the defensive capabilities. In fact, it requires participants who enter into this in good faith to assist them. I want to read the exact words of Article X, because I have a feeling that, by the time the Senate votes, everyone will have understood that this is the ball that we have to keep clearly in focus. Paragraph 3 of Article X reads as follows: Each state party undertakes--undertakes--to facilitate and shall have the right to participate in the fullest possible exchange of equipment, material and scientific and technological information concerning means of protection against chemical weapons. The parties undertake. Paragraph 6 of Article X reads: Nothing in this convention--nothing in this convention [if we had drafted this up here, it would say notwithstanding any other provision of law] nothing in this convention shall be interpreted--shall be interpreted--as impeding the right of states parties to request and provide assistance bilaterally and to conclude individual agreements with other states parties concerning the emergency procurement of assistance. So Article X not only pledges the parties, they undertake to share everything that is hard to achieve in a chemical weapons capability--the defensive side--but, in fact, anticipating the possibility that someone might say, well, we interpret this differently, words have specifically been included that say nothing in this convention shall be interpreted as impeding. Now, what are we talking about when we talk about the assistance, the fullest possible exchange, and so forth? That is defined in Article X. It refers inter alia to detection equipment and alarm systems, protective equipment, decontamination equipment and decontaminants, medical antidotes and treatments, and advice on any of these protective measures. In short, everything you need, combined with the offensive chemicals themselves, to constitute a militarily effective chemical weapons capability. Senator Biden. Mr. Chairman, I am sure Mr. Perle would not mind my asking. Can I ask a clarification question? Mr. Perle. Sure. Senator Biden. What does Paragraph 7 mean? Mr. Perle. The paragraph I read to you, nothing in this convention shall be---- Senator Biden. No. Each party undertakes to provide assistance through the organization and, to this end, to elect--to elect to take one or more of the following measures. Does that modify it? That is all I am trying to bring up. Mr. Perle [continuing]. No. I do not believe it does. It sets up a mechanism, which actually makes matters a little bit worse. Because the Secretariat will become a repository--not the only repository, because this envisions bilateral cooperation, as, for example, between China and Iran or China and Pakistan. But the Secretariat will now become a repository of information about defensive technology. So the span of control of the United States will be diluted, to the extent to which the United States does not constitute the Secretariat all by itself, which of course it will not. Senator Biden. I thank you. I have a different view, but I will wait until my time for questions. Mr. Perle. So I think it is reasonable to speculate that if we go ahead and approve this convention as it is now written, we will look back 1 day--5 years from now, 7, 10 years from now, maybe sooner--and we will unhappily identify states who got their chemical weapons capability through the sharing that is going to take place pursuant to Article X. The administration argues that, well, we are not going to do that. Of course, we are not going to give our defensive technology to rogue states. You would have to be out of your mind to do that. We have no intention of doing that. It is certainly the right of the administration to enter into an undertaking without any intention of carrying it out, because it runs counter to one's common sense. Some people would call that bad faith. I think it would be justified bad faith if we were unhappily unable to avoid the undertaking in the first place, which we are still in a position to avoid. But there are a great many other countries that also possess defensive capabilities and defensive technology. They may not be so willing to act in bad faith. Indeed, they may be actually rather eager to find a basis for sharing the kinds of defensive technologies, equipment, know-how, and so forth that we are talking about here. So if, for example, the challenge were to discourage the Chinese from assisting the Pakistanis, would not the Chinese invoke Article X of the treaty and say, we understand your feelings about this, Mr. President, but we undertook to share this technology. You are not asking us to violate a solemn undertaking, are you? I think our capacity to persuade others will be significantly diminished by virtue of the undertakings in Article X, which we may enter into in bad faith, but others will not. Let me give you a proliferation scenario just for illustrative purposes. Let us take Iran as the example. Iran has already signed, and I assume it will ratify the convention. I think there is evidence that Iran presently has a chemical weapons capability. But let us say that the Iranians, upon entering the Chemical Weapons Convention, decide to abandon that offensive capability. It is a matter of converting some plants that are now producing chemicals to the production of insecticide or fertilizer. What can you do from left to right, you can do from right to left. So Iran now ceases to have an offensive chemical weapons production capability. It is, therefore, in strict compliance with the terms of this convention. That is what I would do if I were Mr. Rafsanjani and wanted a chemical weapons capability. Because I do not today have the defensive side of the equation. So I would eliminate any violation by ceasing illegal activity. Now I would invoke Article X, and I would go to other countries and say, ``We have no offensive capability. We are in full compliance. You are obliged--you have undertaken to share with us the defenses.'' I promise you there will be countries that will accommodate them--for a price--maybe even without insisting on much of a price. Who could argue against it, since they will be, at that point, in full compliance? So a period of time elapses, during which the Iranians, who were clever, acquire all the defensive technology they need. They acquire, in the words of the treaty, detection equipment and alarm systems, protective equipment, decontamination equipment and decontaminants, medical antidotes and treatments, and advice on all of the above. Once they have that firmly in hand, once they have the difficult part of acquiring a chemical weapons capability, now they restart the production of offensive chemicals. But it is too late. We will have supplied them the thing that they cannot now easily achieve. They will put part A and part B together, and they will have a chemical weapons military capability. The instrument by which they will have achieved this is the convention that we are now talking about ratifying. Let me conclude, Mr. Chairman, by saying two other things. One about how we could get into this situation. How could we be at this stage of the proceedings, with so many countries having signed this agreement, with the Senate about to take it up, having overlooked--because that is the only fair way to describe it--the portentous implications of Article X? There is another article, Article XI, which tends very much in the same direction, and I think it will have a similar result. I had occasion to discuss this treaty recently with a senior official of this government, a cabinet level official. I asked this person about Article X. This person did not know about Article X. Now, Article X has become better known in the last 72 hours. But a couple of weeks ago, there were an awful lot of very senior officials of this government who did not know about Article X and did not know about the problem. You wonder how this could happen. Well, it happens in the following way. The United States makes a decision to propose a treaty on chemical weapons and a draft is put together. The draft did not have Article X in it. We sent a team of people to Geneva, and they come back 10 years later, basically. For 10 years, they are working away on this convention. The people who are receiving their cables in Washington are very often people who were in Geneva, because there is a kind of rotation. This is how it works in the real world. So you get an intellectually incestuous relationship among the Geneva people and the Washington people, with almost no adult supervision. The individuals involved in this invest a great deal of their time, years of their lives, in attempting to bring about a treaty. Somebody insists on an Article X, or maybe a group of countries insist on an Article X. It is 10 years after we got started on this, and we want to bring this treaty home. It is the experts who are making the decision. No President reads the treaty. No Secretary of State reads the treaty. No Under Secretary. No Assistant Secretary. I promise you, Mr. Chairman, this treaty, 160 pages long, has not been read by anyone who was not paid full-time to work on it. So terrible mistakes can be made--mistakes in which somebody loses sight of the ball along the way. That is what comes to the Senate for ratification. One last point. Senator Feinstein asked about verification. How would verification be improved if the United States remained outside the treaty? It is a fair question. The answer is counterintuitive. So let me take a quick shot at it. I think it would be improved in two ways. First of all, I think we would do a better job of keeping to ourselves the means by which we detect violations. Jeane Kirkpatrick made reference to the fact that Iraq had served on the governing board of the IAEA. They were there for a good reason. The Iraqi Government did not contribute the full-time talent of one of its senior officials for the benefit of the IAEA; I promise you that. He was there to learn as much as he could learn about how the IAEA went about detecting illegal activity. He was an intelligence officer. I promise you that the organization responsible for implementing this agreement will be full of intelligence officers, including intelligence officers from countries who are eager to discover how they might be caught if they had a clandestine program. So we will end up educating the very people whose programs we are trying to stop in how to avoid getting detected in the first place. So that is one way in which we will be worse off. We do not have to educate them now, but we will then. Second, and this is a more subtle point, once activity becomes illegal, the way in which information about it is collected and analyzed and reported acquires an entirely different meaning than when it is simply intelligence about the activities of others. When we are interested in the capabilities of a Russian missile, we employ technicians who look at the test data that they are able to acquire, who look at photography, who look at all sources of intelligence; and they make a judgment about the capability of that missile; and they say how far they think it can go; and they say what size warhead they think it can carry. They say everything to the best of their ability about that missile; and they do not think about the implications of their answer, because their job is to unearth the truth about that missile. But now, suppose there is an arms control regime in which that missile, if its range is over 600 kilometers, is a violation of a treaty; but if it is only 595 kilometers it is not a violation of a treaty, and you are now responsible for deciding whether to send to the President a report that says, we believe the range of this missile to be 650 kilometers, which has very important political implications. At that point, an element of political judgment enters into the assessment of intelligence. I saw this day in and day out as we grappled with the question of how to interpret what we were seeing in the old Soviet Union in the cold war days, so I believe that the objectivity with which we view the evidence becomes inevitably colored by political considerations when the issue is not, what do we know, but is what we know going to touch off a crisis because we have now caught someone violating the treaty; and that requires some response on our part. So I do not accept the now hourly-passed-off view that we are going to do more with this treaty than without it, which is the conventional wisdom; but I think it overlooks these two very important points. I am sorry for going on too long, Mr. Chairman. Thank you very much. The Chairman. You have not at all, and I thank you very much. Now we have another long-time friend of all of us, Dr. Fred Ikle, former Director of the Arms Control and Disarmament Agency. We appreciate you coming, sir. We will be glad to hear from you now. STATEMENT OF DR. FRED C. IKLE, FORMER DIRECTOR, ARMS CONTROL AND DISARMAMENT AGENCY Dr. Ikle. Thank you, Mr. Chairman. I am honored to be invited here. The previous witnesses, Ambassador Kirkpatrick and Richard Perle, made so many of the important points of what effectively is a sad story that I can be quite brief. It is a sad story; because as witnesses yesterday mentioned, there were good intentions behind this treaty, and we all are--the witnesses yesterday and today--are horrified by the potential of chemical weapons and would like to see them banished from the face of the Earth. Ambassador Kirkpatrick very tellingly brought back the nonproliferation treaty, which of course was preceded by the Atoms for Peace program. President Eisenhower with that program also had very good intentions. In fact, he got enormous kudos in the press when he presented that program. It was one of his greatest public affairs successes, and--as it turns out now from hindsight--one of the main contributors to nuclear proliferation. I can add to the telling points Richard Perle made about Article X and the related culprit, Article XI about the assistance in chemical manufacturing technology. Here, there is something a bit startling in the discussion we had. By and large the discussion in Congress and in the media has been very thoughtful on both sides, serious arguments, honestly felt. It is all the more regrettable here that on the question relating to Article XI it looks like some misinformation has deliberately been infiltrated into our discussion, and that is the allegation which a number of people here picked up innocently, the allegation that the United States would lose seriously in chemical manufacturing exports if we did not ratify the treaty. For a while, the administration spokespersons mentioned a number like $600 million lost per year in U.S. exports, legitimate chemical manufacturing exports. When pressed on where that number came from, the administration said: ``talk to the Chemical Manufacturing Association.'' When the people there were asked, they really were unable to give an explanation. So we did some further digging into this question; and it turns out the only exports that the U.S. could no longer make, if it did not become a party to the treaty, to other treaty members like Germany, Japan, and the U.K., would be the poison gas itself, which of course we do not want to be exporting, and the most dangerous ingredients to be used in gas warfare. Schedule I type chemicals is poison gas itself. There are no exports, obviously, from the United States of any importance. Schedule II, that may have some role in pesticides, but exports are much more limited than the $600 million figure suggested. So why has this export damage been so vigorously mentioned, particularly by the Chemical Manufacturing Association representatives that are urging the Senate to ratify this treaty? I think the answer, I believe, is that some people there relish the prospect that the Chemical Weapons Convention would undo the restrictions of the Australia Group, precisely the thing Senator Biden expressed serious concern about, and rightly so. Now, this is a serious charge to make, and maybe I had better have a couple of exhibits for my case. One, I was not able to fully nail down. Maybe you could have this done, Mr. Chairman. Last fall, in the House of Representatives, a step was taken--exactly where it came from I do not know, it would seem to have the support of the Chemical Manufacturing Association--to lift the licensing requirements for chemical weapons exports to the member states of the convention before even the United States had ratified the treaty. Then, Members--colleagues of yours--I think yourself, Mr. Chairman, Senator Pell, Senator Glenn, Senator Kyl in a bipartisan effort stopped that premature dismantling of our licensing requirements. The more definitive exhibit goes further back. In testimony before this committee on June 9, 1994, a spokesman conveying the support of the Chemical Manufacturing Association said, and I quote, ``There are several significant reasons why the chemical industry supports the CWC. Those chemical manufacturers do not make chemical weapons. Our industry does produce commercial chemicals which can be illegally converted into weapons. An effective CWC could have the positive effect of liberalizing--liberalizing the existing system for export controls applicable to our industry's products, technologies, and processes.'' So I think there is at least a partial explanation for the enthusiasm of the CMA for this treaty. Now, that is perhaps in some ways a serious charge. I think it is. Let me add one more point there. To the extent I have been able to find out, and I know some other people have confirmed this, this is not a charge against the most senior officials of the industry who are members of the association. I have talked to CEO's of large chemical companies, including in Delaware, who have never heard of the treaty while it was in process and while the representatives here in town of the CMA have been working together with this club in Geneva that Richard Perle described, and nourished the support for this treaty. So I think we have to first of all get rid of the idea that not ratifying the treaty would damage the exports of the United States chemical industry, the legitimate, important exports; and second I think we have to put a question mark behind the support alleged by the CMA of the responsible senior officials in the chemical industry. Thank you, Mr. Chairman. The Chairman. I thank you, Dr. Ikle. I think the legislation you were talking about was H.R. 364, and that would have just devastated the U.S. export controls. Now we come to Doug Feith, former Deputy Assistant Secretary of Defense for Negotiation Policy, and by George, I am anxiously awaiting hearing from you. Thank you for coming in. STATEMENT OF DOUGLAS J. FEITH, FEITH AND ZELL, P.C., FORMER DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR NEGOTIATION POLICY Mr. Feith. Thank you very much, Mr. Chairman. I appreciate the opportunity to appear before this committee again on this important question. I agree with Dr. Ikle that the debate on the Chemical Weapons Convention has been of remarkably high quality for a matter so complex. I have a statement that I would appreciate the committee admitting for the record, and what I would like to do now is just touch on some of the points in my written statement, if that is acceptable. The Chairman. Very well. Without objection it will be so ordered. Mr. Feith. Thank you. Both sides in this debate have established substantial common ground. Both sides agree that the treaty is not verifiable, if by verifiable we mean confidence in detection by U.S. intelligence of illegal clandestine stockpiling or production of chemical weapons. No one in the intelligence community has ever said the treaty is verifiable by that standard. It is worthwhile to stress that the verification problem here is not the lack of perfection. The problem is not that we would detect cheating only 90 percent or 50 percent of the time. The problem is that chemical weapons production is so easy to do and to conceal that it is inherently impossible to achieve any degree of confidence, let alone high confidence, that we could detect it even regarding militarily significant quantities of chemical weapons. Someone once drove this point home by saying that the Chemical Weapons Convention is like an effort to ban Hollandaise sauce without banning eggs and butter. Treaty critics believe that it would not serve the anti-chemical- weapons cause for us to join a ban that we know will be ineffective, impossible to monitor properly, and impossible to enforce. I speak as a lawyer devoted to the principle of law. The world would surely be a better place if law in fact played a greater role in securing international peace and civilized behavior, but we do not move toward this goal by promulgating a patently ineffective treaty. A chemical weapons ban that states know they can sign cynically and violate without punishment will not shore up the international norm against such weapons. Creating bad law is not the way to build respect for law. The CWC will cheapen the currency of international law. The wiser approach, in my opinion, to chemical weapons arms control is embodied in the bill S. 495, authored by Senator Kyl and cosponsored by Senators Lott, Helms, and others. The United States should work to obtain international agreement on mechanisms for enforcing the existing treaty that bans initiation of chemical warfare. We should put teeth in the 1925 Geneva Protocol. If that treaty were properly enforced, there clearly would not be any need for the CWC; and if the Geneva Protocol continues to be violated with impunity, then there is no hope that the CWC will be respected, for violations of the CWC are far less discoverable and provable and far less likely to horrify worldwide opinion than violations of the non-use ban. What of the point that we might as well ratify the CWC as we are destroying the U.S. chemical arsenal anyway? It is better, in our view, to destroy our arsenal unilaterally than to enter into a treaty that we know will not accomplish its purpose. By acting unilaterally, we produce some of the key benefits hoped for from the CWC without taking on the treaty's undesirable baggage. Our action makes a strong moral statement against chemical weapons, but it does not lend our name to the dishonest proposition that Iran, China, or others have actually abolished their chemical weapons arsenals. Which brings us back to the question highlighted by Senator Feinstein: Whether we are better off with the inspection and information rights that the CWC will provide, or without. On balance, we are better off without. The CWC's verification regime stands on two legs. The first is voluntary disclosure. Most of the regime is based on what the parties voluntarily declare about their own holdings of chemical weapons, manufacturing facilities and the like. Virtually all the CWC's inspections will be at so-called declared facilities, that is, locations that each party will itself declare to be subject to inspection. Nearly all the large budget of the new CWC organization based in The Hague will be allocated to inspecting declared facilities and processing the parties' voluntary declarations. Does anyone expect a country like Iran or China or Russia to declare a facility in which it is planning to produce or store illegal chemical weapons? The declarations and the inspections of declared facilities will yield our government little, if anything, of value to augment what we already know from our own national intelligence means. Looking for chemical weapons at declared facilities brings to mind the joke about the drunk who looks for his keys under the street lamp rather than some ways off where he dropped them, because there is more light under the lamp. The verification regime's second leg is challenge inspection. That is, inspection of a facility that was not declared. This is often talked of as if it were a tool for adding to our knowledge, or for finding violations. It is not. One cannot spot check a country the size of Iran, much less China, by means of challenge inspections. The purpose of challenge inspections is to try to embarrass a state that one has by other intelligence means caught in a violation. So it is incorrect to think that we will learn much of substantive value through challenge inspections. Moreover, the CWC's challenge inspection provisions were watered down in the negotiations to the point where they are not even a useful tool for embarrassing cheaters. Parties will easily be able, within the treaty's terms, to delay and otherwise defeat the purposes of the challenge inspection provisions. The issue of whether the CWC will produce a net gain for our intelligence capabilities must also be considered in light of the harm that will result from participation in the international inspection program by unreliable states, as Ambassador Kirkpatrick and Mr. Perle highlighted, and as Secretary Schlesinger highlighted yesterday. I would simply emphasize that when rogue states learn how to inspect, they learn how to conceal, and in this regard I think it should disturb the Senate that the administration has taken steps to begin training foreign CWC inspectors even before the Senate has acted on this treaty. I understand that some government agencies are resisting this effort, and I urge this committee to inquire into this. Now, Articles X and XI of the CWC have received a great deal of attention lately, and these provisions are a major part of the reason that the CWC will do more harm than good, as has been explained very well. I do want to reemphasize in response to the textual analysis that Senator Biden mentioned that the argument that Article X, paragraph 3, the most troubling provision, is overridden by Article I, is, I believe, flatly contradicted by what paragraph 6 says, that nothing in this convention shall be interpreted as impeding the right of States' Parties to provide assistance. The people who drafted this provision anticipated precisely the argument that Article I might override Article X, paragraph 3, and they took care of it by nailing it in paragraph 6. This is a serious problem. As for Article XI, it prohibits, or at least expresses disapproval of export restrictions in the chemical field among treaty parties. Unlike the language of Article X, that of Article XI is not completely unqualified, so the administration has been able to offer an interpretation that renders this provision meaningless, a legal nullity. But whether or not the administration's interpretation is valid, I would argue that it is beside the point--the real issue is not--and I want to emphasize this point. The real issue is not what the United States itself will export, but what third countries will want to sell to the Irans of this world. For export controls to be effective they must have multilateral support, which is hard to organize. If a German or Chinese company arranges to sell an advanced chemical plant to Iran, and the U.S. Government protests that this would enhance Iran's chemical weapons program, we can expect the German or Chinese Government to cite Article XI for the proposition that the sale is not only permitted but required by the CWC; for Iran will be a party in good standing, or in any event a party against whom no violation can be proved. Whatever one thinks of the CWC overall, no one can deny that it would be a better or less bad treaty if the so-called, ``poisons for peace'' provisions were fixed. Though I think the Senate should reject the CWC outright, some treaty critics would be willing to withdraw their opposition if only the Senate would ensure that Articles X and XI are properly amended before U.S. ratification. Such critics argue that to be minimally acceptable the CWC should at least not undermine the very interests--stemming chemical weapons proliferation--that it aims to promote. Administration officials counter with the argument that it would be embarrassing for the United States at this late stage to insist that the treaty be amended. They say this would destroy our diplomatic credibility. While it would to some extent be embarrassing, it is also embarrassing to ratify a treaty with provisions as perverse as Articles X and XI. As for our diplomats' credibility, the effect of forcing amendments of Article X and XI could be powerfully positive. If the administration's interpretations of those provisions are widely held, then the amendment should not be unduly difficult to arrange. If they are so difficult, this would confirm that the provisions are a problem, and the United States should not ratify until the problem is resolved. If the administration, as is likely, then succeeds in getting the needed amendments, the influence of our diplomats would be enhanced. The next time a multilateral forum proposes a treaty with a bizarre provision adverse to our interests, our negotiators would be able to declare credibly that that provision will preclude Senate approval of the treaty. This will strengthen our hand. A final point regarding deadlines. Many states of concern to us--Syria, Libya, Iraq, and North Korea--have not signed the CWC. Although some such states, specifically Russia, China, Iran, and Cuba, have signed; none of these latter four has yet ratified. The administration insists that it is crucial that the United States ratify the CWC before April 29, but if we do we will be the only state party that actually has a significant chemical weapons capability. April 29 is an artificial deadline. Any time the United States might decide to become a party, it will, because of its military and financial status, be afforded an appropriate position of influence in the treaty organization if we assert ourselves properly. This is true because we are to pay 25 percent of the total budget of the new organization. It is true also because the other major states in this field are waiting for the United States before they decide whether to ratify. If the Senate is ready to act before April 29, then well and good, but the Senate should not, in my opinion, hasten its deliberations simply to make a meaningless deadline. Thank you very much. [The prepared statement of Mr. Feith follows:] Prepared Statement of Douglas J. Feith Chairman, I appreciate the opportunity to appear before you again on this important question. It was in March 1996 that I last had the honor to address this committee on why I think the Senate should not consent to ratification of the Chemical Weapons Convention (CWC). During the Reagan Administration, I served as Deputy Assistant Secretary of Defense for Negotiations Policy and my responsibilities included the chemical weapons treaty negotiations. The debate on the CWC has been of remarkably high quality for a matter so complex. The sides have engaged each other intelligently and generally respectfully and have established substantial common ground. They agree that chemical weapons are evil. Specifically, all four of us on this panel--Fred Ikle, Jeane Kirkpatrick, Richard Perle and myself-- agree with the treaty's proponents that it would be desirable to eliminate these weapons from the world entirely and that the United States should continue to destroy its own chemical weapons, as we are already doing, whether or not the United States joins the CWC. We all favor the CWC's goal. We all agree that the chemical weapons threat in the world is a problem the gravity of which the world should never underestimate. In fact, a key reason for opposing the CWC is that it will falsely advertise that the chemical weapons threat has been mitigated when it has not. The debate has also made clear that both CWC proponents and critics acknowledge that the treaty has flaws. Both sides agree that the treaty will not be global and will not cover a number of the states of greatest concern to us. Both sides also agree that the treaty is not verifiable, if by ``verifiable'' we mean confidence in detection by U.S. Intelligence of illegal, clandestine stockpiling or pro- duction of chemical weapons. No one in the intelligence community has ever said the treaty is verifiable by that standard. It is worthwhile to stress that the verification problem here is not the lack of perfection. The problem is not that we would detect cheating only 90 percent or even only 50 percent of the time. The problem is that chemical weapons production is so easy to do and to conceal that it is inherently impossible to achieve any degree of confidence--let alone ``high confidence''--that we could detect it, even regarding militarily significant quantities. Someone once drove this point home by saying that the CWC is like an effort to ban hollandaise sauce without banning eggs and butter. In her testimony before this Committee yesterday, Secretary of State Albright argued for the CWC by asserting that rogue states would be subject to unprecedented verification measures and ``will probably be caught'' if they violate the treaty. The Secretary of State was incorrect in this assertion and there is no intelligence authority in the government that would confirm her claim. Both sides in the CWC debate agree that the treaty will not actually eliminate chemical weapons from the world. And both sides agree that the CWC is in essence a moral statement against chemical weapons, a declaration that the civilized nations abhor these weapons and think that no one should possess them. The debate now has a rather precise focus: Given the importance of the chemical weapons problem and given that the CWC has its flaws, is the United States better served by ratifying the treaty or not. Treaty proponents say that the United States is better off if the world enacts this new international law against possession of chemical weapons, even if we know that key countries will violate it. They also say that we are better off with the inspection and information rights that the CWC will provide than without. Treaty critics contend that the treaty will not accomplish its purpose and will actually exacerbate the chemical weapons problem in the world. Treaty critics believe that it would not serve the anti-chemical- weapons cause for us to join a ban that we know will be ineffective, impossible to monitor properly and impossible to enforce. I speak as a lawyer devoted to the principle of law. The world would surely be a better place if law in fact played a greater role in securing international peace and civilized behavior. But we do not move toward this goal by promulgating a patently ineffective new treaty. A chemical weapons ban that states know they can sign cynically and violate without punishment will not shore up the international norm against such weapons. On the contrary, it will damage that norm even more severely than it was harmed by the world's failure to uphold the 1925 Geneva Protocol on Chemical Weapons when Iraq violated that venerable treaty in the late 1980's. Creating bad law is not the way to build respect for law. The ill- conceived CWC will cheapen the currency of international law. The wiser approach to chemical weapons arms control is embodied in the bill, S. 495, authored by Senator Kyl and cosponsored by Senators Lott, Nickles, Mack, Coverdell, Helms, Shelby and Hutchison: The United States should work to obtain international agreement on mechanisms for enforcing the existing treaty that bans initiation of chemical warfare. In other words, we should put teeth in the 1925 Geneva Protocol. If that treaty were properly enforced, there would clearly be no need for the CWC. And if the Geneva Protocol continues to be violated with impunity, then there is no hope that the CWC will be respected, for violations of the CWC are far less discoverable and provable and far less likely to horrify world opinion than violations of the non-use ban. If one cannot get the world excited about disfigured corpses produced by violations of the Geneva Protocol, it is unrealistic to expect tough enforcement action when U.S. officials allege clandestine storage somewhere of some chemical bulk agent. What of the point that we might as well ratify the CWC as we are destroying the U.S. chemical arsenal anyway? It is better, in my view, to destroy our arsenal unilaterally than to enter into a treaty that we know will not accomplish its purpose. By acting unilaterally, we produce some of the key benefits hoped for from the CWC without taking on the treaty's undesirable baggage. Our action makes a strong moral statement against chemical weapons. But it does not lend our name to the dishonest proposition that Iran, China or others have actually abolished their chemical weapons arsenals. The world can verify our compliance with our self-imposed ban by reading the Congressional Record. We then do not have to participate in a costly, wasteful, intrusive but ineffective verification regime that is more likely to spread militarily relevant chemical weapons technology than contain it. Any other chemical weapons state that wants to follow our lead can do so, also unilaterally. Each will have the opportunity to persuade the world as best it can that it is doing what it has promised. This way, states will not obtain a clean bill of health simply by signing a treaty and subjecting themselves to an inspection regime that they know is easy to defeat. Which brings us back to the question of whether we are better off with the inspection and information rights that the CWC will provide or without. On balance, we are better off without. Treaty proponents stress that the CWC's verification provisions are unprecedented in their elaborateness and intrusiveness, which is true. But they will contribute little of any importance to what we need to know about the chemical weapons threat in the world. The CWC's verification regime stands on two legs. The first is voluntary disclosure. Most of the regime is based on what the parties voluntarily declare about their own holdings of chemical weapons, manufacturing facilities, chemical stocks and the like. Virtually all the inspections to be conducted under the CWC will be of so-called ``declared facilities''--that is, locations that each party will itself declare to be subject to inspection. Routine inspections will focus exclusively on ``declared facilities.'' Nearly all the large budget of the new CWC organization based in the Hague will be allocated to inspecting ``declared facilities'' and processing the parties' voluntary declarations. Does anyone expect a country like Iran or China or Russia to declare a facility at which it is planning to produce or store illegal chemical weapons? The declarations and the inspections of ``declared facilities'' will yield our government little if anything of value to augment what we already know from our own national means of intelligence. Looking for chemical weapons at ``declared facilities'' brings to mind the joke about the drunk who looks for his keys under the street lamp rather than some ways off, where he dropped them, because there is more light under the lamp. The CWC verification regime's second leg is challenge inspection-- that is, inspection of a facility that was not ``declared.'' This is often talked of as if it were a tool for adding to our knowledge or for finding violations. It is not. One cannot spot check a country the size of Iran, much less China, by means of challenge inspections. The purpose of challenge inspections is to try to embarrass a state that one has, by other intelligence means, caught in a violation. So it is incorrect to think that we will learn much of substantive value through challenge inspections. Moreover, the CWC's challenge inspection provisions were watered down in the negotiations to the point where they are not even a useful tool for embarrassing cheaters. Parties will easily be able, within the treaty's terms, to delay and otherwise defeat the purposes of the challenge inspection provisions. The issue of whether the CWC will produce a net gain for our intelligence capabilities must be considered also in light of the harm that will result from participation in the international inspection program by unreliable states. As Secretary Schlesinger noted before this committee yesterday, Iraq in the 1970's and 1980's learned a great deal about how to conceal its nuclear weapons program through participating in the inspection regime of the Nuclear Non-Proliferation Treaty. When rogue states learn how to inspect, they learn how to conceal. In this regard, I think it should disturb the Senate that the Administration has taken steps to begin training CWC inspectors even before the Senate has acted on the treaty. I understand that some government agencies are resisting this effort. I urge this committee to inquire into this. Articles X and XI of the CWC have received a great deal of attention, including at this committee's hearing yesterday with the three former Secretaries of Defense--Rumsfeld, Schlesinger and Weinberger--who opposed ratification. These provisions are a major part of the reason that the CWC will do more harm than good. These provisions will promote the spread of chemical defense and other technology that will make it easier for states to develop a chemical war fighting capability than if the CWC did not exist. Article X obliges the parties to facilitate the exchange with the other parties of chemical weapons defense material and technology. To have an effective chemical war fighting capability, one must have defense material and technology to protect one's own forces. Article X will establish the right of Iran, for example, to obtain such items from Germany, France, China or some other state. And it will establish the right of the would-be sellers to provide such items to Iran. The language of Article X is straightforward. Paragraph 3 says: Each State Party undertakes to facilitate, and shall have the right to participate in, the fullest possible exchange of equipment, material and scientific and technological information concerning means of protection against chemical weapons. And Paragraph 6 says: Nothing in this Convention shall be interpreted as impeding the right of States Parties to * * * provide assistance * * * [where ``assistance'' is defined as ``delivery * * * of protection against chemical weapons, including * * * detection equipment and alarm systems; protective equipment * * *; decontamination equipment * * *; medical antidotes * * *; and advice on any of these protective measures]. As Richard Perle has pointed out, the CWC prohibits that part of a chemical weapons capability that is easy for states to make for themselves: the weapons themselves. The other part of that capability-- defense material and technology, which is relatively ``high tech'' and difficult to acquire--is precisely what the treaty affirmatively requires the parties to proliferate. Similarly, Article XI prohibits--or at least expresses disapproval of--export restrictions in the chemical field among treaty parties. Unlike the language of Article X, that of Article XI is not completely unqualified, so the Administration has been able to offer an ``interpretation'' that renders this provision meaningless, a legal nullity. This allows Administration officials to assert that the United States will maintain export controls on Iran and others notwithstanding Article XI. Whether or not the Administration's interpretation is valid, it is beside the point. The real issue is not what the United States itself will export, but what third countries will want to sell to the Irans of this world. For export controls to be effective, they must have multilateral support which is hard to organize. To return to the example above: If a German or Chinese company will arrange to sell an advanced chemical plant to Iran and the U.S. government protests that this would enhance Iran's chemical weapons program, we can expect the German or Chinese government to cite Article XI for the proposition that the sale is not only permitted but required by the CWC, for Iran will be a treaty party in good standing (or, in any event, a party against whom no violation can be proved). There is precedent for such a colloquy. The Clinton Administration protested against a Russian sale of a nuclear reactor to Iran. The Russians replied by citing the provisions in the Nuclear Non- Proliferation Treaty--the ``atoms for peace'' section--on which CWC Articles X and XI are modeled. This is why Fred Ikle has referred to Articles X and XI as ``poisons for peace.'' Whatever one thinks of the CWC overall, no one can deny that it would be a better (or less bad) treaty if the ``poisons for peace'' provisions were fixed. Though I think the Senate should reject the CWC outright, some treaty critics would be willing to withdraw their opposition if only the Senate would ensure that Articles X and XI are properly amended before U.S. ratification. Such critics argue that, to be minimally acceptable, the CWC should at least not undermine the very interest--stemming chemical weapons proliferation--it aims to promote. Administration officials counter with the argument that it would be embarrassing for the United States, at this late stage, to insist that the treaty be amended. They say this would destroy our diplomatic credibility. While it would, to some extent, be embarrassing, it is also embarrassing to ratify a treaty with provisions as perverse as Articles X and XI. Also, the Clinton Administration could take comfort from the fact that the error of agreeing to those provisions was committed not by itself but by the Bush Administration. As for our diplomats' credibility, the effect of forcing amendments of Articles X and XI could be powerfully positive. If the Administration's interpretations of those provisions are widely held, then the amendments should not be unduly difficult to arrange. If they are so difficult, this would confirm that the provisions are a problem and the United States should not ratify until the problem is resolved. If the Administration, as is likely, then succeeds in getting the needed amendments, the influence of our diplomats would be enhanced. The next time a multilateral forum proposes a treaty with a bizarre provision adverse to our interests, our negotiators would be able to declare credibly that that provision will preclude Senate approval of the treaty. This will strengthen our hand. A final point regarding deadlines. Many states of concern to us-- Syria, Libya, Iraq and North Korea--have not signed the CWC. Although some such states--specifically Russia, China, Iran and Cuba--have signed, none of these latter four has yet ratified. The Administration insists that it is crucial that the United States ratify the CWC before April 29, but if we do, we shall be the only state party that actually has a significant chemical weapons capability. April 29 is an artificial deadline. Any time the United States might decide to become a party, it will, because of its military and financial status, be afforded an appropriate position of influence in the treaty organization. This is true because we are to pay 25 percent of the total budget of this new organization. It is true also because the other major states in this field are waiting for the United States before they decide whether to ratify. If the Senate is ready to act before April 29, then well and good. But the Senate should not, in my opinion, hasten its deliberations simply to make a meaningless deadline. Thank you. The Chairman. Thank you, sir. That concludes the testimony. Now, we have two or three Senators on this side coming back. I think we had better limit ourselves in the first round to 5 minutes, if that is satisfactory. Senator Kerry. Mr. Chairman, is it possible to get a little more? Five minutes is really very difficult to develop any line. The Chairman. Well, it will eat into the time of the proponents of the treaty. Senator Kerry. We have got all day. Senator Biden. Admiral Zumwalt has to leave here at 4:30, I am told. Maybe---- Senator Kerry. Well, I will go along with it, then. The Chairman. All right. Let us try 5 minutes. Dr. Ikle, I have a letter dated March 13 from the Aerospace Industries Association. It states that a strong concern that the CWC will, and I quote from the letter, ``unnecessarily jeopardize our Nation's ability to protect its national security information and proprietary technological data.'' Now, this treaty, as we know, will permit foreign inspectors into thousands of U.S. businesses to poke around, interview employees, take photographs, and take samples home for analysis there. Now, given your assessment of the foreign policy benefits of this treaty, if any, do you think it makes sense to subject U.S. companies, private companies, to this danger of the theft of millions of dollars in trade secrets? Dr. Ikle. I like the way, Mr. Chairman, you put the question--``given the benefits of the treaty.'' If the treaty was of major benefit, clearly verifiable in other aspects and it enhanced arms control objectives, maybe that was a risk we would want to take, that on occasion some very clever disguised intelligence person, disguised as an objective inspector, could pick up some valid information. But that is not the case. The benefits of the treaty, even as seen by the supporters, are not that strong, and from what we have heard today, they are a negative. From what we have heard so far among the witnesses today, what you can obtain by samples that can be analyzed in a national laboratory back home by instruments which can be carried with you, brought into the places where chemicals are prepared for our sensitive weapons systems, could be very, very significant. I remember from my days in the Pentagon the briefings that I received of analyses that our intelligence organization had made in other places, and how much we learned from just somebody walking through with the right little instrument in his pocket. So that is very serious. Incidentally, if I may insert here a further thought, as if all of this was not bad enough, some supporters who want to hasten the ratification of the Chemical Weapons Convention argue that it should be followed up then by a verification scheme for biological weapons. As Arms Control Director, I took the biological weapons treaty before this committee. Senator Fulbright was sitting in the chair at the time, and I explained right away that it was not verifiable but it was a useful thing to have as a statement of our opposition to biological weapons, and I do not regret that. I think it is useful even now in Iraq, because it caught Iraq violating the agreement that they had signed. But if you want to follow that up with an inspection team on biological weapons--many people in the bureaucracy are now working on that, in this process that Richard Perle described to Geneva and back here without ``adult supervision''--it is ten times as dangerous, the things you can then steal from these so-called onsite inspections to get really way ahead in biological weapons. So it is dangerous here, and if you cannot stop the follow on it will be really catastrophic. The Chairman. I thank you, sir. Ambassador Kirkpatrick, you hear a lot of arguments that nonratification of the CWC will mark the forfeiture of U.S. leadership in the fight to eliminate chemical weapons from the face of the Earth. That is almost a quote-unquote from voice after voice after voice orchestrated by the White House. Do you agree, or do you believe that the rest of the world will continue to look to the United States with or without this treaty? Ambassador Kirkpatrick. Mr. Chairman, actually I think that to the extent that the rest of the world looks to us for leadership, and I think we sometimes exaggerate that leadership in our own minds, I do not think it will be affected much by what we do on this treaty; and I will tell you why. The reason is that our reputation for leadership in the military, scientific, and technological domain rests not only on our clear undoubted excellence and long lead on other nations, but also in our willingness to assume responsibility for responding to dangerous challenges. We have done this again and again, and I think we will continue to offer that kind of leadership. Sometimes that requires standing alone, or standing nearly alone and saying, should we not consider what the implications of this are for the spread of chemical weapons in the Middle East, North Africa, and Europe? I think that those nations that have a high regard for us might even have a higher regard for us. The Chairman. I think so, too. Senator Biden. My time is up. Senator Biden. Thank you very much. In the interests of time I am going to focus on only one issue, and I think we all acknowledge that sometimes the more persuasive we make one of our arguments against the treaty, the more irrelevant another argument becomes. For example, it is kind of interesting that I think Ambassador Kirkpatrick and Mr. Perle have made very strong arguments against universality of the treaty, because if they are correct then the last person you want in this, Mr. Chairman, is Korea and the other rogue nations, Iraq and Libya; so I think it is a very compelling argument against universality. Mr. Feith makes a very compelling argument that one of the reasons why verification does not work is because the Bush administration responded to what Ronald Reagan wanted done, and that was he wanted intrusive investigations that were inspections that maybe would violate our Fourth Amendment, and so we fixed the Fourth Amendment. There is no Fourth Amendment problem here, notwithstanding what people assert, and I think you would acknowledge that. You may not want to, but as a good lawyer I believe you would have to. I know you looked at it. So the administration fixed one piece and made the inspections, the relevance of inspections that were challenge inspections less relevant. But let me focus on this notion that paragraph or Article X is so bad. Let me tell you folks how I read it, and Mr. Perle, I would like to direct this to you, but I will not limit it to you, although I would like to get in one other question before the light goes out. As I read it, and I might point out, Mr. Feith, paragraph 6 is not affected--does not in any way limit paragraph 1. Paragraph 6 refers to bilateral, not international regimes but bilateral, and so the issue here is whether or not we are going to contribute to, in effect, this fund. We are going to put in this information that can be disbursed by this international organization. All paragraph 6 is about is saying that if we want to keep our deal going with NATO, if we want to keep our deal going with our allies, we can do that. But as I see this, multilateral is the only way to limit these chemical weapons, yet paragraph 6 on Article X refers to bilateral. Paragraph 1, which defines assistance, I believe trumps paragraph 3, but ultimately paragraph 1's definition lies in paragraph 7. It defines what international assistance is. That is where it is defined. Within that, it says that international assistance is the following, that you can provide assistance, and to this end elect--elect one or more of the following so there is no requirement, as I read Article X, and as constitutional scholars I have spoken to--and this is not a constitutional issue, but legal scholars I have spoken to, there is no requirement of the United States to throw anything into the pot but what it decides it wishes to throw in, and to that end, Senator Helms and I have been negotiating conditions, which leads to my question. A condition that says--let me get it here--that requires the United States--requires the United States not to contribute to the voluntary fund for chemical defense assistance anything other than certain medical antidotes and treatment, which is what is listed in paragraph 1, so if we are not in the treaty, the point you made still pertains. If England or if France or if anyone else is going to transfer this technology to Iran, they are going to do it whether we are in it or not. If we are in the treaty, we are not obliged to do that, and to clarify that--at least I am, and I assume the Chairman still is--willing to attach a condition to the treaty defining our interpretation of Article X and limiting what can or cannot be transferred to what is mentioned, medical antidotes and treatments. I am not asking you to accept it. I would just like your view, Mr. Perle, whether that would--assume the worst from your perspective, that the treaty passes. Is it better to have that, and if it is, how much better is it? Mr. Perle. I do think, Senator, that paragraph 3, which describes the undertaking, is not qualified by the elaboration of the various means in paragraph 7. I do not think that was ever the intention. It will, I am sure, not surprise you to know that in the course of negotiation at one time paragraph 3 read, ``each State Party guarantees to facilitate.'' The United States thought that was too much, and maybe others did as well, so we ended up compromising on ``undertakes,'' as though--the point, in objecting to ``guarantee,'' the American representative made it very clear that he did not think he could fall back on the interpretation you have just offered of paragraph 7 to limit the extent of the undertaking. Senator Biden. My time is up. I would disagree with that. I would argue statutory interpretation, the specific controls the general. The specifics in paragraph 7, the legal judgments I have gotten comport with this. Mr. Perle. Senator, if I could just answer the question with a kind of question, if we could fix this treaty, I mean, I am sure that you would agree that the cleanest solution would be to eliminate the whole of Article X. Why not do that? Senator Biden. I think the cleanest solution would be to limit our participation in the treaty to define this the way in which we intended, or at least we intended here; because I think to go back and renegotiate an entire treaty, we are another 10 years down the road, but we can fix it by doing this in my view. Mr. Perle. But if it means what you say it means, and other parties to the treaty understand that, then it seems to me it would be a breeze to change it. The Chairman. Because of this point, I am going to allow you about 45 seconds, which I will take off my time. Mr. Feith. I appreciate that, Senator. I would just say, Senator Biden, if everybody in the Senate devoted the kind of meticulous attention to the words that you have done, I am confident that there would be a much greater understanding and much less support for the treaty. I do compliment you on paying close attention. This treaty looks worse when you look at it closely, so I very much applaud your careful attention. Senator Biden. Now, that is a nice smart-ass comment. Mr. Feith. When you said that if we are out of the agreement we will not be bound, and the Germans or the British will be participating under the terms of this article, that is true. If, on the other hand, the United States made clear that the condition for our coming into the treaty is fixing this provision, without which, I think we can all agree the treaty would be better off--the fact that you have to do so elaborate an interpretation makes it clear that we will have difficulties when we go to other countries. Even if we could persuade ourselves of your interpretation, on which reasonable people can differ, when we go to persuade other countries, that is the nub of the issue: going to Germany or China or whoever and trying to get their cooperation on export controls---- Senator Biden. No, that is not is how it is happening here. Mr. Feith [continuing]. We are going to have great difficulty. The treaty would be better off without this provision complicating things. The Chairman. Thank you. Senator Hagel. Senator Hagel. Mr. Chairman, thank you, and I wish to thank the panelists. You have provided an awful lot of very significant insight, and I, as well as all of my colleagues, am grateful, and thank you. I am going to help my friend Senator Biden here, because I am going to follow along that path that he has taken. Is this, in your opinion--and I would like to hear from each of you--a treaty, a convention that is one that you can rehabilitate? Is it one that you think we can still work on and, if it is, what do we do? Do we eliminate X and XI, amend it? If we were able to amend X and XI, would that satisfy the four of you? Each of you, I would like to have each of you, if you would, respond. Ambassador. Ambassador Kirkpatrick. I think it would be very significantly improved. I believe that the composition of the governing board requires attention as well. Senator Hagel. Thank you. Mr. Perle. Senator, I could support this treaty without any great expectations of its efficacy if we corrected the problem in Article X and Article XI, and I think that can be done. It took 10 years to produce this treaty with this serious flaw in it. I think it would take a great deal less time to eliminate the flaw. Nothing else would have to be renegotiated, only this one provision. Senator Hagel. In your opinion. Thank you. Sir. Dr. Ikle. I would agree that it would eliminate the damage to the down side. It would not make it into a great accomplishment, and it would still have some flaws on the intelligence collection; but it would be much less damaging, so that on balance maybe it could be passed, if it is really amended, Article X. Senator Hagel. Thank you. Mr. Feith. In my view, the treaty is a net loss from the national security point of view, in any event. I believe that the country would be better off if the Senate rejected the treaty and sent everybody back to the drawing board and did something constructive in this field. But one of the key questions is: How much of a net loss? I agree with all of my colleagues that the treaty would be far less bad if Articles X and XI were duly amended. Senator Hagel. So there we are, Mr. Chairman. We figured it out, and I will yield my time back. Thank you. The Chairman. Very good. He is a breath of fresh air in the Senate, I will tell you that. I am going to suggest that the Senator have 8 minutes to sort of compensate for whatever has run over with time. Senator Kerry. Thank you very much, Mr. Chairman. With my voice, I may need it. Welcome back to the panel. Let me, if I can, follow up on the question from Senator Hagel. Mr. Perle, I understand, then, from your answer to Senator Hagel that your chief, your principal objection to it resides in the transfer of technological scientific information, Article X, section 3, and then in Article XI, the entire question of technical information with respect to chemical, general chemical development, is that correct? Mr. Perle. Yes, although it is not just section 3 of Article X. It is really the whole of Article X. Senator Kerry. Well, let me ask you why--and I am having difficulty with this, but I am trying to keep open-minded about it. Reading Article I, which as you, I am sure, will agree, is the heart of this treaty and the overpowering article, it says that each party to the convention undertakes never under any circumstances--and I presume you will agree that any circumstances mean, under any circumstances, so that when you go to Article XI, or X, you are clearly defining within the context of Article I under any circumstance no party can ever transfer directly or indirectly chemical weapons to anyone. Therefore, all of Article XI with respect to development of any kind of chemical is clearly interpreted by the directly or indirectly clause of I. Second, it says that you can never undertake under any circumstances to develop or produce or otherwise acquire, stockpile, retain, to assist, encourage or induce anyone to engage in any activity prohibited under this convention. Now, I do not think any lawyer sitting here has any problem with that language, do we? Is there any confusion as to what is prohibited here? Mr. Perle. Senator, the problem is that until a State Party to the convention is found to have violated the convention by engaging in the production of chemical weapons---- Senator Kerry. Precisely. Mr. Perle [continuing]. There is no basis upon which you could presume that Article I would permit you to avoid the undertaking of Article X or the promise of Article XI. Senator Kerry. Now, let us get to that. Now we are sort of going down the road. So therefore, under any circumstances, the only way we will ever be able to do anything about Article I or any of the others is to know what is going on. Mr. Perle. No, not to know what is going on. There is a very big difference between knowing what is going on and proving through the mechanisms of the institution that a violation has taken place. Senator Kerry. Right, but that is ultimately how you know. You prove it. You prove it through the challenge process, through the inspection process. Mr. Perle. No, I do not think you will ever prove anything through the inspection process. Senator Kerry. So no verification process---- Mr. Perle. Could I just say one thing? Senator Kerry. Let me just ask you, are you saying that no verification process whatsoever would therefore be sufficient? Mr. Perle. I am saying you cannot verify the production of chemical weapons, because any plant that can be used for the production of permitted chemicals can also be used for the production of chemical weapons. There is a problem here. Senator Kerry. I understand that, and that can happen today, without the treaty. Mr. Perle. In 1997 a country that is not violating the agreement, and which is therefore entitled to all the benefits of Article X and XI, may exploit those benefits, invite international companies in to buildup their chemical industry as perfectly proper and perfectly legal, invite, solicit, receive cooperation in the development of the full range of defensive measures, and then, having accomplished all of that, violate Article I and some other point. Senator Kerry. But isn't the problem, can't they do that now anyway? Mr. Perle. Can they induce others to? Senator Kerry. They could invite anybody or induce anybody or pay anybody to do whatever they want today. Mr. Perle. The difference is the following. Let us take China and Pakistan as an example. The Germans complain that they are too frequently identified in this regard. The German industry is very aggressive in this regard, but set that aside, and take China and Pakistan. If China today engages in the sharing of chemical defensive technology with Pakistan, you can be sure that an American administration that is doing its job is going to be in Beijing remonstrating with the Chinese and saying, we think this is a very dangerous thing to do. Senator Kerry. But let me stop you there if I can for a minute. Mr. Perle. But suppose there was a treaty that says they must do it? Senator Kerry. I understand. Well, no. What it says is, they shall have the right to participate in the fullest possible exchange. Mr. Perle. Right. Senator Kerry. Now, possible is what is right and appropriate under Article I, which means---- Mr. Perle. No, no. No, no. But there will have been no finding in the case of Pakistan, Senator. Pakistan is a legitimate recipient of assistance until Pakistan is found to have violated the agreement. Senator Kerry. Correct, but it is only as to defense, number 1, that they have a right to request anything. Mr. Perle. Well, both with respect to defensive, and with respect to commerce and chemicals. Senator Kerry. Defensive with respect to chemical weapons, and generically with respect to the development of a chemical. Mr. Perle. But the defense is the tough part. That is what is hard to do. Senator Kerry. But let me ask you, you were in the administration that offered to give the Russians Star Wars once we developed it. I mean, you were going to turn over the entire defense to them once we put it together. That was your plan. Mr. Perle. There is an important difference here. Senator Kerry. Which is? Mr. Perle. Which is that the defense in this case, the ability to operate in the presence of chemical weapons, is what makes the offensive capability possible. Senator Kerry. But that is exactly the same thing. Mr. Perle. No, it is not. The sharing of defenses in the earlier context was intended to permit both sides to eliminate the offensive capability. Senator Kerry. Correct. Mr. Perle. Not to make it feasible. It is exactly the opposite. Senator Kerry. I would disagree. If you are sharing a defensive capacity--I mean, Caspar Weinberger yesterday used a good example. If you have developed a foolproof gas mask, and you transfer the foolproof gas mask to another country, the likelihood, if you both have a foolproof gas mask, of either of you successfully using chemical weapons against each other is zero if it is foolproof, so the likelihood--I mean, you are not going to factor it into your military strategy. That was the same strategy in Star Wars. Mr. Perle. Well, we do not have chemical weapons, Senator, and we will not, so a foolproof gas mask--let me just put it this way. I would not worry if we had a foolproof gas mask, but I would certainly worry if Iran or Iraq or Libya had a foolproof gas mask, even if we also had one. Senator Kerry. But you see, you have already suggested that we are better off getting rid of our chemical weapons altogether, without any inspection regimen. Now, that is very hard for me to follow. Mr. Perle. Because I do not think they are militarily useful. Senator Kerry. Well, if they are not militarily useful, then you do not worry about what they have in terms of defensive capacity. You are going to deter it with nuclear weapons. We did not have any problem deterring Iraq, did we, during that war. It seems to me that there is a cold war philosophy going on here that you have got to have a technological edge, and you have to keep having the edge rather than struggling to go into a state of neutrality. Mr. Perle. I take very seriously what Jeane said, that chemical weapons are regarded in much of the Third World as the poor man's equivalent of nuclear weapons, and there is a lot of pressure to acquire these chemicals. We want to discourage that, and we want to discourage it in every possible way, and one way to discourage it is to make sure that the thing that is most difficult for a country desiring chemical weapons to accomplish, which is the acquisition of a defense, is made more difficult and not less difficult, and any treaty that promises to share that technology is just headed in the wrong direction. Why don't we fix it? The Chairman. Senator Feinstein. Senator Feinstein. Thank you very much, Mr. Chairman. I want to thank the witnesses, because I think their testimony has really been very thought-provoking. I have been a proponent of the treaty, and I must say you have encouraged me to look at it in a very different way. I have read and reread Article X now about eight different times. But Mr. Perle, you make an interesting theorem, and that is that the effectiveness of any policy here is the defense, and if you can defend against it you create a spiral. I mean, you succeed. Do you have any information that the administration might have agreed to this section on a case-by-case basis? Mr. Perle. I am not sure I understand what you mean. Senator Feinstein. In other words, that this section would only be carried out provided they, the United States, had the right to reject a request. Mr. Perle. No, I have no information to that effect. I think it is our intention not to honor the undertaking. I mean, I would prefer that when we undertake to treaties---- Senator Feinstein. You mean, to guarantee to undertake and then not honor--in other words, not carry out that section? Mr. Perle. I think we intend not to carry out what is a clear obligation. Senator Feinstein. That is No. 3. Mr. Perle. If we are burdened with this treaty then I, too, would be in favor of not honoring that commitment, because it would be a foolish thing to do. Senator Feinstein. Because I think you made a good argument. Why is Article X in there? Obviously, if somebody has an offensive use of a chemical weapon against them, I think the legitimate nations of this world are going to respond and try to be helpful as much as possible. I wonder why it is necessary to have this in it at all, in terms of the integrity of the treaty. Mr. Perle. I believe it is not, and more to the point, if you will allow me to say this, I think that if you came to the conclusion that it should not be there, and two or three of your colleagues joined you, we can get it out of there. Senator Feinstein. May I then go on, and thank you very much, to what Ambassador Kirkpatrick mentioned on the composition of the governing bodies. You mentioned that. That was the other concern that you had. What changes do you think are merited in the composition? Ambassador Kirkpatrick. Senator Feinstein, what concerns me with this governing body and comparable ones is the preponderance on the governing body of countries lacking in the technological sophistication and technological experience to make really well-informed judgments about handling these materials. That is what concerns me. I just do not think that the quality of the decisions will be nearly as reliable as they could be. They are dangerous in any case. We all agree that this is a dangerous subject, and any decisions dealing with it are going to be imperfect and leave some danger. But the more the board that makes the decisions knows, the more experience they have, the more detailed technological sophistication they have, the better their decisions will be. That is what concerns me about it. Senator Feinstein. Thank you very much. Mr. Chairman, I do not know whether this is possible or not, but I would very much like to have an administration response to the arguments made on Article X. I think the points made here are very good points. I wonder why Article X is really necessary. Senator Biden. I would be happy to give them to you. They have responded officially and on the record. I would be happy to make sure you get them. Senator Feinstein. All right. That is a major concern to me. I just make that point. Thank you very much. The Chairman. I thank you, Senator Feinstein. Lady and gentlemen, thank you so much for coming. Senator Biden. Mr. Chairman, before you dismiss this panel, could I have 30 seconds to try to clarify one point, if I may? The Chairman. Thirty seconds. Senator Biden. First of all, I think Article X--I disagree with the reading, but even if your reading is correct, I think it can be cleared up by a condition. But, Mr. Perle, you talked about the real world. The real world is Saddam Hussein, Qaddafi, or any of the rogue states. They are not going to worry about protecting their troops before they use chemical weapons. Nothing in their modus operandi would suggest that would even be a consideration for whether or not they would use chemical weapons, if they were going to use it, I would respectfully suggest. The Chairman. Very well. Senator Kerry. Mr. Chairman, could I have 20 seconds? I just want to clarify one point with Mr. Perle. The Chairman. It is your time, 20 seconds. Go. Senator Kerry. Thank you very much, sir. I just wanted to clarify with Secretary Perle that it is my understanding that nothing in the convention requires the finding of a treaty violation before Article I applies to that particular country. I think, in your answer to me, you were suggesting you had to first find the violation. I do not believe you do. Mr. Perle. In the illustration that I offered before, where the Chinese might be building a facility for Pakistan, I do not mean--I just chose Pakistan at random. Senator Kerry. I am not even picking those countries. I just mean generically. Mr. Perle. But any country pair. I do not see on what basis, Senator, we could prevail over the words and the obligations and the undertakings of the treaty itself if there had been no finding of a violation. Otherwise, you are saying, anybody can do whatever anybody wishes. Senator Kerry. Well, in effect---- The Chairman. No, wait a minute, 20 seconds. Senator Kerry. Mr. Chairman, I think this is important to note. The Chairman. All of them are important, including the next panel. Senator Kerry. In effect, in this treaty, you can. The Chairman. Come on, Senator, I gave you more time than anybody else had. Senator Kerry. I appreciate that, Mr. Chairman. But I am not trying to abuse it. I just think the record is important here. Mr. Perle. I will be glad to call you after the hearing. Senator Kerry. There is a withdrawal capacity for national interest here. Any time we see the national interest, you have got 90 days to get out of this. Mr. Perle. Oh, yes, we can always get out of this treaty. But that is not going to solve any of the problems we are concerned about. The Chairman. Thank you, gentlemen and lady. We appreciate your coming so much. Senator Kerry. Thank you, Mr. Chairman. The Chairman. The next panel consists of three friends of all of us. They have been around this place for a while. As I was saying, this panel not only consists of Americans who are well known, but they are friends of every one of us on the committee. General Scowcroft, I have known him ever since I came to this city, and that was a while ago. He is now President of the Forum for International Policy. He is former National Security Policy Advisor. Admiral Zumwalt is a member of the President's Foreign Intelligence Advisory Board, and he is former Chief of Naval Operations. Ed Rowny. He is the very Hon. Ed Rowny, my neighbor, former Ambassador, and Lieutenant General, U.S. Army, retired, International Negotiation Consultant, former Chief Negotiator for START I, and Special Arms Control Advisor, Washington, D.C. Now, I am going to have to depart for another meeting I cannot get out of, and Senator Hagel said that he would take the gavel for me. I have one question, if I may, out of order. That would be for Admiral Zumwalt. Sir, Article X has been criticized, because it promotes the spread of CW defense technology. Article XI has been criticized, because it tends to undermine multilateral export controls among treaty parties in the chemical field. Even regarding untrustworthy states like Iran, are the concerns about Article X and XI sensible? In other words, is it sensible, sir, to concern ourselves with whether Iran might more easily get CW defense or other technology as a result of these Articles? Would the United States of America be better off if Articles X and XI are fixed before the CWC is ratified? Three questions. Admiral Zumwalt. It is a fair question to raise in connection with Articles X and XI, in my judgment. The answer, in my judgment, is that non-ratification to seek a modification at this time would, in essence, delay the participation of the United States, in the mechanism that is being set up for a very large number of years, and that the organization created by those that have ratified it in sufficient numbers would operate with all of the advantages and disadvantages the critics on either side are citing. I believe that we would be better off to ratify the treaty and to work from within the system, with the considerable powers we bring, both financial and political, to make any modifications over time than we would to let this new treaty regime operate without the insider influence of the U.S. Government. The Chairman. Very well. Now Senator Hagel is going to take the chair and the gavel. Why do not you, since you are under time constraints, go with your statement first, sir, followed by Ed Rowny and Mr. Scowcroft. Senator Biden. Again, thank you, Mr. Chairman, for accommodating this panel. I appreciate it. STATEMENT OF E.R. ZUMWALT, JR., ADMIRAL, UNITED STATES NAVY (RETIRED), MEMBER, PRESIDENT'S FOREIGN INTELLIGENCE ADVISORY BOARD Admiral Zumwalt. Thank you, Mr. Chairman. Since I was notified, Mr. Chairman and members of the committee, just yesterday of the requirement to be here, I would submit for the record an article I have written and a letter which I co-authored, which state the positions I have taken on this treaty. I, of course, recommend that it be ratified. I found myself disappointed to have to be at crosshairs with the distinguished panel that just preceded he me, because they are all good friends of mine; but I take issue with a number of things that were said. First, with regard to the Nuclear Proliferation Treaty, I was a part of the group that analyzed the capabilities of the nations of the world to acquire nuclear weapons before the Nuclear Proliferation Treaty was considered. We estimated that there were somewhere between 20 and 30 nations, within a period of 10 years, that would have the nuclear capability. In my judgment, the Nuclear Proliferation Treaty has, without a question of a doubt, slowed down the rate of acquisition of nuclear weapons. It was not a perfect treaty. It could have been made more perfect if it could have been negotiated, but it was not negotiable in any other form. It has accomplished its mission far better than no regime would have permitted it be accomplished. I think the same thing can be said with regard to this Chemical Weapons Convention. We hear that it is a disadvantage that we will not get the rogue nations in. The rogue nations will not come in whether or not the United States ratifies it. It will make no difference whatsoever with regard to the situation in the world whether or not we ratify insofar as the rogue nations are concerned. It has been said that because they would not come in, the treaty is therefore useless. In my judgment, the international regime that the treaty gives us--the ability to sanction the rogue nations that do not come in--is not there without U.S. membership and thus effective U.S. influence as it is for those like Iran who do come in. But the conventional sanctions that we are capable of bringing about in other ways are still there for us to operate. In other words, insofar as those who do not come in are concerned, I think this treaty, ratification or not, is irrelevant. With regard to the Article X issue, I think it has been quite clear, both based on what lawyers have told us and what Mr. Berger for the administration has told us, that the undertaking to facilitate does not obligate the United States to do more than has been discussed here; namely, to provide, if it chooses to do so, the kind of help that would not in any way harm us. The ability for us to get more access is an important thing to me as a member of the President's Foreign Intelligence Advisory Board. I have just finished service on a subcommittee of that group, which has examined our ability to gain the appropriate intelligence in the BW field and the CW field and in the nuclear field. I can tell you that we need to improve it and that, however less than perfect it might be, the opportunity to inspect is going to give us additional information which can be cross-compared with what we get through other sources in the intelligence community. It will, without a doubt, enhance our ability to know more about what is going on. That, coupled with the fact that we have an international regime, if we ratify the treaty, to work within, the fact that the treaty will cause, at the very least, the disposition of masses of volumes of poisonous substances-- after all the nations who are ratifying it will be obligated to eliminate their volume--make it less available for the terrorists groups and for the rogue nations to get, in one way or another. I worry about a decision to reject. I worry about a decision to qualify in a way that does not provide formal ratification. I think that the logical course for the United States, now that we have reached this point, with a treaty that is going to come into effect whether or not we ratify it, is that we are better off to work within the system, use our financial powers and our political powers to seek the modifications that are necessary and to pick up the advantages that are there. Thank you, Mr. Chairman. [The information referred to by Admiral Zumwalt follows:] Washington Post, January 6, 1997. A Needless Risk for U.S. Troops [by E. R. Zumwalt Jr.] It has been more than 80 years since poison gas was first used in modern warfare--in April 1915 during the first year of World War I. It is long past time to do something about such weapons. I am not a dove. As a young naval officer in 1945, I supported the use of nuclear weapons against Japan. As chief of naval operations two decades ago, I pressed for substantially higher military spending than the nation's political leadership was willing to grant. After retiring from the Navy, I helped lead the opposition to the SALT II treaty because I was convinced it would give the Soviet Union a strategic advantage. Now the Senate is considering whether to approve the Chemical Weapons Convention. This is a worldwide treaty, negotiated by the Reagan administration and signed by the Bush administration. It bans the development, production, possession, transfer and use of chemical weapons. Senate opposition to ratification is led by some with whom I often agree. But in this case, I believe they do a grave disservice to America's men and women in uniform. To a Third World leader indifferent to the health of his own troops and seeking to cause large-scale pain and death for its own sake, chemical weapons have a certain attraction. They don't require the advanced technology needed to build nuclear weapons. Nor do they require the educated populace needed to create a modern conventional military. But they cannot give an inferior force a war-winning capability. In the Persian Gulf war, the threat of our uncompromising retaliation with conventional weapons deterred Saddam Hussein from using his chemical arsenal against us. Next time, our adversary may be more berserk than Saddam; and deterrence may fail. If that happens, our retaliation will be decisive, devastating--and no help to the young American men and women coming home dead or bearing grievous chemical injuries. What will help is a treaty removing huge quantities of chemical weapons that could otherwise be used against us. Militarily, this treaty will make us stronger. During the Bush administration, our nation's military and political leadership decided to retire our chemical weapons. This wise move was not made because of treaties. Rather, it was based on the fact that chemical weapons are not useful for us. Politically and diplomatically, the barriers against their use by a First World country are massive. Militarily they are risky and unpredictable to use, difficult and dangerous to store. They serve no purpose that can't be met by our overwhelming conventional forces. So the United States has no deployed chemical weapons today and will have none in the future. But the same is not true of our potential adversaries. More than a score of nations now seek or possess chemical weapons. Some are rogue states with which we may someday clash. This treaty is entirely about eliminating other people's weapons-- weapons that may someday be used against Americans. For the American military, U.S. ratification of the Chemical Weapons Convention is high gain and low or no pain. In that light, I find it astonishing that any American opposes ratification. Opponents argue that the treaty isn't perfect: Verification isn't absolute, forms must be filled out, not every nation will join at first and so forth. This is unpersuasive. Nothing in the real world is perfect. If the U.S. Navy had refused to buy any weapon unless it worked perfectly every time, we would have bought nothing and now would be disarmed. The question is not how a treaty compares with perfection. The question is how U.S. ratification compares with its absence. If we refuse to ratify, some governments will use our refusal as an excuse to keep their chemical weapons. Worldwide availability of chemical weapons will be higher, and we will know less about other countries' chemical activities. The diplomatic credibility of our threat of retaliation against anyone who uses chemical weapons on our troops will be undermined by our lack of ``clean hands.'' At the bottom line, our failure to ratify will substantially increase the risk of a chemical attack against American service personnel. If such an attack occurs, the news reports of its victims in our military hospitals will of course produce rapid ratification of the treaty and rapid replacement of Senators who enabled the horror by opposing ratification. But for the victims it will be too late. Every man and woman who puts on a U.S. military uniform faces possible injury or death in the national interest. They don't complain; risk is part of their job description. But it is part of the job description of every U.S. Senator to see that this risk not be increased. [See page 25 for the letter to which Admiral Zumwalt referred.] Senator Hagel [presiding]: Admiral Zumwalt, thank you very much. In the interest of time, what Senator Biden and I have agreed to do, if it is OK with your fellow panelists, is get the last 15 minutes we have with you, Admiral, with questions. So, with that, the Chairman had a question and I would turn to Senator Biden. Senator Biden. I understand the Admiral has a 4:30 plane, if you guys do not mind. I will be very brief. Thank you, Mr. Chairman. Admiral, did not the Nonproliferation Treaty regime help us mobilize the world reaction to North Korea's violations? Admiral Zumwalt. In my judgment, it did; yes, sir. Senator Biden. And would we have been able to make a credible threat of international sanctions had there been no such treaty? Admiral Zumwalt. Clearly the regime, the NPT, made that more feasible and more effective. Senator Biden. And did not that point you are making about the CWC, that, at least at a minimum, it establishes a norm against which, when violations are clear, we can mobilize world opinion and justify actions we would likely take that we might not be able to justify in world opinion? Admiral Zumwalt. Absolutely. It is a less than perfect step, but far better than the present system. Senator Biden. In the interest of time, obviously, this is going to be somewhat more of a statement than a question. I think you have made five very valid points. That is, as I translate them, everything the critics say is wrong with this treaty would be worse if you did not have the treaty. Everything that is wrong with the treaty would be worse if you did not have the treaty. The last point that you made, which you referenced, is political power. As it relates to Article X and Article XI, even if my interpretation is wrong, which I believe it is not-- and most legal scholars do not believe it is either--but even if it is wrong, the place in which we are going to be able to impact on whether or not another nation transfers technology, a defensive technology, to a rogue state will not be through a treaty provision, it will be through our economic power. We just flat say to Germany and Britain and France and the rest-- we will either say it or we will not--we will either say, if you do, you have got a problem, and here is the problem, let me define it for you. I know that Brent Scowcroft met with his counterparts in Germany, France, England, and Italy, and every other country in the world, when they were engaged in things that we might have had questions about. So the point you make, I think, should not be missed. Our significant political, military, and economic power with nations that have the capability of transferring technology is what is going to determine whether they transfer technology. The last point I would make is, the Australia Group, I think they all--and there are 26 of them who have ratified-- they all believe that Article XI in no way, in no way, impedes the organizational structure of the Australia Group and the commitment they have made to one another. Anyway, there is more to say, but I thank you for being here, and especially for the notice. I jerked you all around, because we were unable to get a commitment as to when. I apologize. But I thank you for being here. Admiral Zumwalt. Thank you. Senator Hagel. Senator Biden, thank you. If it is appropriate and OK, what I would like to do, we have got 10 minutes left, maybe we could break it down into 3- minute pieces. That way we give our three colleagues an opportunity to each ask a question. Senator Frist. Senator Frist. Admiral, thank you for being here today. In the interest of time I have just one question regarding the countries who have not signed on, the so-called rogue nations, whether it be Syria or Iraq or North Korea or Libya. If we did not sign on or if we do sign on, either way, how do you see this treaty really impacting those particular nations? Admiral Zumwalt. I think, with or without the treaty, we can continue to impose sanctions on those rogue nations who have not come in. With the treaty, we can clearly impose sanctions on them if they do not respond to our right to inspect. So it seems to me that we lose nothing and gain something by the ratification. The fact that that regime exists as of April 29th, whether or not we are in it, means that we are foregoing a great opportunity to shape for the better a regime that does exist. We cannot stop that existence. Senator Frist. And by our not participating but still having the regime there, say once again how our presence is going to affect those nations. Admiral Zumwalt. Well, the Chairman of this committee, in my judgment, has done a good job of shaping up the United Nations by withholding funds. The same thing can be done, or the other means of asserting political power can be used, working within the organization, while having the influence of being a member. Senator Frist. Thank you, Admiral. Senator Hagel. Senator, thank you. Senator Kerry. Senator Kerry. Thank you very much. Admiral, welcome. What do you think would be the impact with respect to Russia and their potential participation if we do not ratify? Admiral Zumwalt. I believe that Russia is likelier to come in if we ratify than if we do not--far likelier. I believe that we can continue to use all the same kind of methods that we have used to shape up, if I may use that expression, the Russians to date, by helping and withholding. Senator Kerry. Do you, in reading either Article XI or Article X, do you perceive any overt or discernible conflict or do you have to search for the conflict that has been described with respect to Article X and the rights and fundamental obligations of this treaty? Admiral Zumwalt. If I understand the points they have made, I do not--I think there is a consensus on both sides that we do not find ourselves forced, if we ratify, to do anything that is harmful to us. The issue is then, what about the other members of the regime? I repeat again, they are in that regime whether or not we ratify. So that their conduct is something that we will have more opportunity to influence from within than from without. Senator Kerry. Now, Admiral, you were Chief of Naval Operations and have had a remarkable career, in charge of our young people in harm's way. I think that you--and General Scowcroft likewise, and I will come to him later with this question--but based on your military career and the responsibilities that you have had to exercise, in your judgment, are our military forces and our young people in uniform better off with this treaty or without? Admiral Zumwalt. In my judgment, as I say in the documents that I will submit for the record, they are better off with us within the treaty than they are without. I believe that it would be a disservice to our men and women in uniform if we stay outside this regime, which in any event is going to come into existence on April 29. Senator Kerry. And the principal reason in shorthand for that is? Admiral Zumwalt. That we have the ability better to influence from within than from without. Pluses and minuses notwithstanding, the regime exists as of April 29th. I might also add, Senator, that you used to take orders a lot better than you do now. Senator Kerry. Well, I was elected not to take orders. Thank you. I share with my colleagues that the Admiral was my commanding officer when I was in Vietnam; yes, he was. I had the privilege of having him pin my Silver Star on my chest at a beach in Vietnam. So it is nice to have him here. Admiral Zumwalt. For a very well deserved act of courage. Senator Hagel. Senator, for that, you get an extra couple of minutes. Senator Kerry. For that, I have learned not to take them. Senator Hagel. I was going to say, your life is a lot easier right now, Senator. Seriously, if you would have any questions, we have a little extra time. Senator Feinstein. Senator Feinstein. Thank you very much, Mr. Chairman. Admiral, welcome. Admiral Zumwalt. Thank you. Senator Feinstein. I wanted to go back again to I think the central point that Mr. Perle made, which was developing a defense against chemical weapons is perhaps the greatest incentive to the development of chemical weapons, in the sense that if you can defend against them adequately, it creates perhaps an incentive to be able to use them--and particularly, I guess, with the mentality that might use these horrible things. Do you agree with that theory? Admiral Zumwalt. The regime makes it possible for defenses to be improved. That is unassailable. One has to make a judgment about the tradeoff between what that accomplishes for the good of the majority of the nations involved, versus what opportunities it gives the bad guys to take advantage of it. The fact that we have created an international regime that gives us at least some opportunity to provide sanctions, some opportunity to provide a regime of international law, makes me feel that, on balance, we are better off to go ahead and take the---- Senator Feinstein. If you would permit me, the good guys really do not need this. Because the good guys are not going to use the chemical weapons. The good guys are going to respond to a neighbor in need like that and help. It is really the bad guys that you have got to deal with. My experience is, with the bad guys, they are going to use this kind of thing for every conceivable edge they can get. Therefore, why help them? Admiral Zumwalt. Well, Senator, let us take Iran as an example. I think we both agree that they are a bad guy. Iran is going to be within the regime. Based on my experience on the President's Foreign Intelligence Advisory Board, I would rather get the advantage of being able to demand the inspections that we get from this regime than I would to worry about the rather exotic strategy that my brilliant friend Richard Perle suggested they would follow. I think that the fact that we would have the pressure of public opinion, the opportunity to use political power, and so forth, would more restrain Iran that otherwise would be the case. Senator Feinstein. All right. Then take that example. Iran has an illegal insecticide plant or any kind of a manufacturing plant. Somewhere within this plant there is some capacity to make or combine or to produce a chemical weapon in some way. That is not necessarily going to be found on an inspection. It probably will not be. Admiral Zumwalt. There is some probability that it will not be found. There is some probability that it will be. Coupled with other intelligence capabilities, which are constantly improving, I think we can increase that probability over time. Therefore, I would rather be within the regime than without. I think we gain more than we lose. I do not trust Iran at all, but I think that there will be more restraint on them if we are within the regime and operating it in a vigorous way. Senator Feinstein. Thank you very much. Senator Hagel. Senator, thank you. Admiral Zumwalt, thank you very, very much for taking the time. Senator Biden. Thank you very much, Admiral. I appreciate it. Admiral Zumwalt. Thank you, sir. Thank you for accommodating my schedule. Senator Hagel. I hope you are on your way to somewhere exotic. Admiral Zumwalt. I made a promise to a granddaughter. Senator Hagel. Oh, wonderful. General Rowny, welcome. STATEMENT OF EDWARD L. ROWNY, LIEUTENANT GENERAL, U.S. ARMY (RETIRED), INTERNATIONAL NEGOTIATION CONSULTANT Ambassador Rowny. Thank you, sir. Before I start, I would like thank the Chairman, Senator Helms, who is my neighbor and good friend, who stood by me when I resigned from SALT II in protest over that flawed treaty. I think we got a good subsequent treaty as a result of turning down SALT II. I have him to thank for that. I also have tremendous respect for the minority leader here, Senator Biden, who attended to our negotiations in Geneva. While we did not always agree, he was always thoughtful and fair and never ad hominem. We had a great deal of respect for him. Senator Biden. Thank you, General. Ambassador Rowny. Rather than read my prepared statement, which I would like to put into the record, perhaps I could save some time by just hitting some of the high points. I will ad lib however. I would like to have my written statement put into the record. Senator Hagel. It will be, without objection. Ambassador Rowny. Thank you, Mr. Chairman. Mr. Chairman, initially I was opposed to this treaty. I was opposed to it, because I didn't think it was verifiable. I didn't like the provisions about the inability to use tear gas in combat. I didn't like Article X and particularly paragraph 3 of Article X. Most importantly, I felt that this treaty might lull us into a false sense of security and fail to provide protection for our troops. But after listening to various debates and following the fascinating evolvement of the 30 conditions, 22 of which have been agreed upon, I have changed my mind. Now I feel that on balance the U.S. Senate should ratify this treaty. Let me give you my reasons. First, as to verifiability, this treaty is not effectively verifiable. I think that is clear, and I think we should not kid ourselves that might be. Second, as to tear gas, I would hope that one of the conditions that is placed on the treaty allows the use of tear gas in combat. Senator Biden. I think we can do that. Ambassador Rowny. I understand that the treaty allows us to use tear gas in domestic situations. But, for example, if in time of war it is necessary to go after a downed pilot, we should be able to use tear gas to do so. As for paragraph three of Article X, I think if we could interpret this in the U.S. way and not the Iranian way, this would be very helpful. I want to dwell on this idea of the ability to protect against chemical weapons. I was appalled when I spoke to several of my friends who were in the Gulf War that we had to go to Germany to get protective vehicles, that we had to go to Great Britain to get our sniffing devices, and that we had to go to the Czech Republic to get contamination equipment. This is no way for a great power to operate, to have to rely on its allies for essential defensive equipment and detection devices. Also, I think that there are more aspects to defense. We should help to defend against terrorists in this country, and I think the moneys and efforts should be put to that end. Furthermore, I believe that ballistic missile defenses should be deployed, because I feel that there are several rogue states which now have ballistic missiles capable of reaching our troops in time of combat with nuclear, biological, and chemical warheads. In a few years they will be able to reach the United States. I think that we should be able to defend not only our troops in combat but the United States against an accidental launch or limited attack. I am not talking about full scale attacks by China or a resurgent Russia but only about limited attacks. I am encouraged that the administration has now recognized our lack of defenses and has said that $225 million will be allocated to protect our troops. I hope that the Congress will fully support this $225 million to provide the defenses against chemical attack. As for Russia, I have been working for 4 years since I left the government to try to get the Russians to ratify START II, and I have been finding this increasingly difficult. I think it is important, but in connection I think it is also important that we get Russia to join the states which would ratify the CWC. President Yeltsin has already signed the CWC, but the Duma is opposing ratification. I think if the U.S. fails to ratify the CWC, it will give the Russians an excuse for not ratifying it. The United States has been in the vanguard, asking countries to join this convention. For us to renege and not ratify the CWC will tarnish our international prestige. A great deal of the world looks up to us as leaders and for setting norms and standards. I think, as a minimum, this treaty would set norms and standards. I am in favor of that. Mr. Chairman, I was in the arms control business for over 2 decades. I think that there are four criteria for any good treaty. First is verification. Second is that the treaty should not be flawed. Third is that it be enforceable, and fourth is that it be in the security interests of the United States. I have already said that this treaty is not effectively verifiable. On the other hand, if we were to enter into the treaty before the 29th of April, we would get a seat within the process and we would be able to help get violators exposed. I think on balance we gain more from being on the inside than we do by being on the outside, especially since this treaty is going to come into effect in any case. The second criterion is that a treaty not be fatally flawed. While the CWC is a flawed treaty, I don't think any of the flaws are fatal. The flaws that are there I think are fixable. I think the tear gas flaw is fixable. I think that paragraph 3 of Article X is fixable. Therefore, I do not think that the fatally flawed argument can apply against this treaty. As for the third criterion, enforceability, no arms control agreement can stand on its own. Even the START I and START II treaties, with which I was proud to be associated, can not stand on their own. To make a treaty effective you need a good defense posture. You have to have a credible way of enforcing it. If you don't have that, an arms control treaty is not worth the paper it is written on. I would hope, again as a matter of emphasis, that we give whatever moneys are necessary to defend ourselves against an attack in the field, terrorist attacks at home, and ballistic missile attacks. Finally, the vital fourth criterion of any treaty is that it be in the interest of the United States. On weighing the pros and cons I have concluded after a lot of thoughtful consideration, that the U.S. Senate should ratify this treaty. Thank you, Mr. Chairman. [The prepared statement of General Rowny follows:] Prepared Statement of General Edward L. Rowny Mr. Chairman: It is a privilege for me to testify once again before the Foreign Relations Committee. Until recently, I was opposed to the ratification of the Chemical Weapons Convention (CWC) by the U. S. Senate. My initial reading of the CWC led me to believe that it was unverifiable, that it would prevent the U.S. from using tear gas in combat, and that it would obligate us to provide sensitive chemical technology to signatory rogue states. However, my major concern was that the United States might be lulled into a false sense of security and fail to provide adequate defenses for our men and women in uniform and citizens at home. I have now studied the treaty more carefully and have also followed the negotiations of the 30 conditions opponents want to attach to the convention. I have been impressed with the Administration's willingness to negotiate a number of these conditions. Accordingly, I have changed my mind, and I now feel that ratification of the CWC would be in the best interests of the United States. The treaty is clearly not verifiable. However, I believe that we can gain from being a member of the inspection framework. it is important that the U.S. Senate ratify the CWC before 29 April, 1997 so that we may be a party to the verification process and that American inspectors, who are among the best trained and experienced in the world, can become members of the international inspectorate. It is true that there are certain disadvantages to being a party to the inspection process. However, I am convinced that we have more to gain by being on the inside than on the outside looking in. I still have misgivings about the prohibition against the use of tear gas during time of war. While I understand that it is not prohibited for use in domestic situations, I can visualize many cases where non-lethal agents would be beneficial in combat. As for the obligation to share defensive technology in all cases, I do not subscribe to the Iranian interpretation of Article X. Rather, I am convinced that the treaty can be interpreted in a way that protects our interests without violating the terms of the CWC. When it comes to my major concern, I was appalled to learn from several officers that during the Gulf War they had to borrow detection equipment from Great Britain, protected vehicles from Germany, and decontamination equipment from the Czech Republic. I am encouraged by the Administration's recent request for funds which would eliminate or mitigate the dangers to our soldiers in combat and our civilian populace. This demonstrates an awareness of our inadequate defensive posture and progress to correct it. However, it is important that the $225 million in requested expenditures be approved by the Congress. I believe that it is also important that the Administration pursue a vigorous program to provide ballistic missile defenses for our forces overseas and for our people at home against accidental launches and limited attacks by rogue states. Several of these states now possess ballistic missiles equipped with nuclear, biological and chemical warheads capable of striking our U.S. troops deployed overseas and will soon be capable of striking the United States. Protecting our soldiers in combat and our civilians from terrorist activities, accidental launches, and rogue state attacks requires not only the request for funds by the administration, but the provision of such funds by the Congress. The CWC will come into effect on 29 April, 1997 whether the U.S. Senate ratifies it or not. A failure to ratify the treaty would place us outside the world's civilized nations and associate us with the pariahs. Additionally, failure of the U.S. Senate to ratify the CWC would give the Russian Duma an excuse to discard the treaty. It is important that Russia become a party to the treaty so that we can inspect their facilities which are reportedly developing new chemical agents. I am also concerned that our enviable position as leaders of the free world would suffer if we fail to ratify a treaty we have convinced scores of other nations to join. We are highly respected and admired abroad largely because of our leadership in establishing high standards and norms of international conduct. At the very least, the CWC will establish such norms and standards for others to follow. For more than two decades as an arms controller, I have maintained that arms control agreements must meet four criteria. First, they must be effectively verifiable; second, they must not contain fatal flaws; third, they must be enforceable; and fourth, they must serve the interests of the United States. The CWC does not meet the first criterion; it is not effectively verifiable. However, the problem of verifying the production and stockpiling of chemicals is more difficult than that of verifying the existence and storage of ballistic missiles, bombers, and air delivered weapons. I believe that under the CWC we stand to gain more information than we might lose. As for the second criterion, while the treaty is flawed, none of the flaws, in my opinion, is a fatal one. Moreover, I believe that continued discussions between the White House and the Senate Foreign Relations Committee can remove or mitigate some of the remaining flaws. The third criterion is a critical one. No arms control treaty, including the START treaties, of which I am proud, can stand alone. The CWC by itself will not protect our troops or citizens, but it will be useful if--and only if--we spend the funds to protect ourselves and have the will to do whatever is necessary to enforce the terms of the treaty. Finally, we come to the vital fourth criterion, that the treaty be in the best interests of the United States. The bottom line must answer the question, ``Are we better off with the CWC or without it?'' Careful analysis and my considered judgment lead me to conclude that we will be better off with it than without it. Accordingly, I respectfully urge the United States Senate to ratify the Chemical Weapons Convention. Thank you Mr. Chairman. Senator Hagel. General Rowny, thank you. General Scowcroft, welcome. STATEMENT OF GENERAL BRENT SCOWCROFT, PRESIDENT, FORUM FOR INTERNATIONAL POLICY, AND FORMER NATIONAL SECURITY POLICY ADVISOR, WASHINGTON, D.C. General Scowcroft. Thank you, Mr. Chairman. It is a great pleasure for me to appear before this distinguished committee on such an important issue. At the outset, I would like to make one thing clear. Chairman Helms made some comment about support being orchestrated by the White House. I want to make sure everybody understands I am not orchestrated by the White House. I am orchestrated by my concern for the national interest. It is in that capacity that I appear. We are talking about how best to deal with one of the scourges of modern man, one of the three weapons of mass destruction, and in some respects the most distasteful one. I am going to be very brief, because I am going to follow Senator Biden's prescription to keep my eye on the ball. I think a lot of the debate this afternoon has been on peripheries. We are not starting a treaty here. We are finishing a treaty. When you strip where we are now to its basic essentials, what is facing us in the Chemical Warfare Convention are very narrow and relatively straight-forward issues. First is: The United States is going out of the chemical weapons business. We were forbidden many years ago, quite a few years ago, by the Congress to modernize our chemical stocks by building the so-called binaries; and subsequent to that we agreed legislatively to mandate the unilateral destruction of our chemical weapons stocks. We are going out of the business. That is the first major point. The second one is that the Chemical Warfare Convention will enter into force whether or not the United States ratifies it. We are not dealing with a bunch of putty here that we can mold any way we want. So the basic question is really a very simple one: Is the national interest served better by acceding to the treaty or by staying outside the convention? The question is not whether this is the perfect treaty. As other witnesses today have said, there is no perfect treaty for chemical weapons. Their manufacture is a lot like insecticides and fertilizers. There is no truly verifiable treaty. So that is not the issue before us. There is not even a possible treaty written just as the United States would like it; because some 160 nations have signed this treaty, and any multilateral convention requires compromise of one way or another. There is only before us this particular treaty. Given the real world situation we are in, therefore, I think the answer to the question is a resounding yes to ratification of the treaty, because it is in the national interest of the United States. I want to digress to make just a couple of points about some of the earlier questions. First is about the Nonproliferation Treaty. As Ambassador Kirkpatrick was winding up, I was waiting for her real punch line, the logical conclusion to her remarks which should be that we would be better off had there been no Nonproliferation Treaty. I think General Rowny has clearly pointed out, as have you, Senator Biden, that that is not the case. Is it flawed? Sure. Do I have problems with it? Sure. But I think there is no question that the treaty played some kind of role in the fact that--I think it was President Kennedy who said that there were going to be 25 nuclear powers within the next decade, but that has not happened. So it is something better than nothing. Article X of the CWC has come in for a lot of discussion today. As I recall, the purpose for Article X was to help those countries who abided by the treaty who might be threatened by chemical attack to be able to defend themselves. Now that is a pretty logical kind of thing. This is not some nefarious thing that the negotiators just cooked up to make a bad treaty. It is a very logical course of action. Now as to the argument that one would never use chemical weapons until one had this perfect defense and, therefore, that is the real threat, I think that is not true. Chemical weapons are the poor man's nuclear weapons. But chemical weapons have, I think, demonstrated that they are not militarily useful weapons. There were masses of stocks of chemical weapons in World War II, which was certainly a no holds barred war. Against an enemy that has defenses, chemical weapons are an irritant; they are not overwhelming. Chemical weapons are valuable as a terror weapon, and you don't need defenses to fire missiles armed with chemical weapons, aircraft dropping chemical weapons. Therefore I think that is a very important aspect in which Article X needs to be looked at. As for reporting requirements, one of the things that has been overlooked, other than to complain about the administration's treaty, is that it does require reporting of shipments of chemical materials and so on. Right now, it is possible for a country to buy a few pounds of a precursor here or a few pounds there, a few pounds somewhere else, and to amass an abnormal supply without anybody ever noticing it. That won't be possible anymore. Therefore, we will have a better idea of what's going on and who the bad guys seem to be. We should ratify this treaty, recognizing that it is not a silver bullet. It is just one weapon--a good one, but just one--in our fight against chemical weapons, and we must continue to employ every weapon in the U.S. arsenal to fight this terror weapon. We cannot sit back and relax. I think one of the things this sharp debate has brought to the national attention is that this is important and we cannot just sign it and forget about it. Starting over, as was suggested this afternoon, I think is pure fantasy. If we reject this treaty, we will incur the bitterness of all of our friends and allies who followed us for 10 years in putting this thing together. It is not a matter of, ``Just well, let's scrap this and let's start over again.'' We will throw the whole civilized world into confusion, and the idea that we can then lead out again down a different path I think is just not in the cards. We have got to deal with the situation we face now, not an ideal one out in the future. Let me close by saying that I spoke to President Bush this morning, and he asked me to state for the record that he is a strong and enthusiastic supporter of the Chemical Warfare Convention and that it would be a severe blow to the U.S. role in the world were we to repudiate it. Thank you, Mr. Chairman. Senator Hagel. General Scowcroft, as always, thank you. Again, General Rowny, we are pleased to have you both here. In consultation with my colleague, Senator Biden, what we will do is go back to the 5 minute rule, if that is appropriate. Is that OK, Senator Kerry? Senator Kerry. (Nods affirmatively) Senator Hagel. I will begin. Picking up, General Scowcroft, on your last comment about President Bush's continued commitment, full support of the CWC, I am intrigued in that yesterday we read a letter from former Secretary of Defense Cheney. You and Secretary Cheney are both highly respected, highly regarded, insightful leaders. You worked closely together. You fought a war together. My understanding is that President Bush has great confidence in each of you. Could you explain to me how the two of you have now come at this differently, why Secretary Cheney can feel as he does and you feel as you do? General Scowcroft. Well, Mr. Chairman, I would be uneasy putting words in Secretary Cheney's mouth. He is a dear friend of mine. We went through the last 4 years of negotiation of this treaty and evolution in what we were going to do, whether we were to going retain residuals until so many people ratified--the whole gamut of things. What I will say is that I think it is a fair statement--I don't think Dick would contest this--that Dick Cheney does not like arms control. He thinks we ought to do whatever we are going to do for our own national defense interest and not do it as an attempt to get somebody else to do something. That he would not have chosen to have the treaty signed I think is a fair statement. He did not resign over it. When President Bush decided to sign the CWC, he didn't make any comment on it. But I have talked to him, and he speaks for himself. But we simply differ on this issue. Senator Hagel. I don't know if you have had an opportunity to see the letter that he forwarded to us. General Scowcroft. I have not seen his letter. I talked to him about 3 weeks ago. Senator Hagel. If you're interested, we will give you a copy of it---- General Scowcroft. I'd like that. Senator Hagel [continuing]. Because he gets into some specificity, as much as you can in a one page letter. Obviously you had some occasion, as you suggest, to work with him a little bit and talk with him about this issue. I have another question on Israel. My understanding is that they have not ratified this yet. Do you know why that would be? General Scowcroft. No, I really don't. As a matter of fact, I think I assumed they had ratified it. I am not clear about that. My guess is that they are waiting for the United States. Senator Hagel. General Rowny, would you care to make a comment? Ambassador Rowny. I subscribe to what Brent Scowcroft said. In the first place, I don't know. But I think they are waiting for the United States, and they want to follow our lead. I know that they were very worried during the Gulf War that they would be bombarded and, they were grateful for our help in trying to knock down those missiles and so forth. They were very keen on relying on our assistance to get a better defensive system, and I am sure that goes over into the chemical field as well. Senator Hagel. Thank you. I would be interested in both of your thoughts on this. I think you each were here when the panel before you addressed some of the issues. You will recall Ambassador Kirkpatrick, Secretary Perle, and yesterday Secretary Schlesinger all talked about the IAEA and some of the ramifications in this opinion as to what has happened and has occurred. Would either of you like to respond to some of what you heard today from some of the two panels before you? General Scowcroft. Let me just say that the IAEA was put together in a way which was not very effective. The terms under which it can inspect were not very effective. But we have some experience, and now I believe we are undertaking a way to make the IAEA very much tougher and to take over responsibilities for inspections that are now the responsibility of UNSCOM and so on. Incidentally, UNSCOM has done a fantastic job. So I think IAEA can be made a very effective instrument in nuclear nonproliferation. But it could not if we did not have it--if we did not have an NPT. Again, I would say that what we are really arguing is does this treaty help us at all. Since we are out of the chemical weapons business, if it gives us some help, we ought to look for help and take it anywhere we can find it; and I think we'd get some help here. Senator Hagel. General, thank you. General Rowny, I want to hear your response as well. Ambassador Rowny. My response is similar to that of General Scowcroft, though I would go a little further. The IAEA was initially inexperienced, but they have come a long way. That is one of the reasons that I think we ought to get in on the ground floor and the initial round of the CWC. The United States has the best trained inspectors in the world. Also, we have learned a lot about countering the restrictions. In the old days, we could not go in unless Iraq invited us to do so. This treaty has many inspection provisions. There are pages and pages of verification protocols which would bind any nation trying to get around the CWC. On the point that was made that we would train other people to be able to circumvent this treaty, I think that is somewhat overblown. Even if it is not overblown, I would take that risk. I would rather be able to go in and inspect, knowing how to inspect and having a lot of rules behind me, even if I knew that I might be giving inspection secrets away. Accordingly, I believe that this treaty would be more easily enforceable than its predecessors. Senator Hagel. Thank you. Senator Biden. Senator Biden. Thank you very much. General Scowcroft, the point that you made I think is a very important point to make, not merely about Secretary Cheney who is a wonderful, fine, bright American. As a matter of fact, just as an editorial comment, I thought for sure he was going to be your nominee. I mean that sincerely. This guy has a presence, an articulation. But I think the point you made is an important one to make here generally. If you look across the board, the bulk of the problem, the bulk of the opposition comes from people who legitimately, and truly consistent with their philosophy and intellectual predisposition, if you will, do not like arms control. One of the things that our distinguished Chairman said when he spoke on the floor the first time on this is he quoted what has been quoted 50 times by a lot of people. I do not say this in a derisive manner. It is: As so and so said, America has never lost a war or won a treaty. That is doctrine among an awful lot of people. I do not belittle it. I just think it is important that we put it in focus. I mean, we have in here a very bright young guy, Mr. Gaffney. In all fairness to Mr. Gaffney, who is sort of the intellectual engine on the right on this one right now, has he ever seen a treaty he likes? It's kind of like: Do you ever take yes for an answer? I understand that. But it is really important that we all understand it so that we can put into perspective some of the criticism. The second point I would like to make is, if you look at the argumentation against the treaty, it is the ultimate Catch 22. The criticism my friends make of the treaty in terms of the Fourth Amendment: If you want to guarantee there is no possibility of ever arguing about it, you have to do something they also do not support, which is these onsite inspections without notification. If you eliminate those, then you have no Fourth Amendment debate. But guess what happens. You eliminate the ability for it to be verifiable and you diminish it. You can go down every single argument. I think we should just make this clear. There is no way to satisfy the critics, the strongest and most articulate critics of this treaty, other than by solving half of their problem. If you solve half their problem, that is the most you can solve. You can't solve it all, because it makes the other portions they criticize even worse. Now, General Rowny, I don't know whether people understand something. I have been here 24 years. I don't know whether they understand how significant your presence here is. I mean, I really don't know whether people fully understand it. In my humble opinion, in terms of bringing bona fides to this debate, with no disrespect to anyone, from General Scowcroft to the President of the United States of America, to President Bush or anybody, you are, in my view, the single most significant supporter of this treaty. You resigned--you resigned--on principle over an arms control agreement you said you didn't like. Here you are, a man whose credentials in terms of being tough, yet still who believes some treaties are useful, here you are supporting the treaty. Now I realize there are ad hominem arguments. I realize there are appeals to authority. I realize there are logical fallacies. But one of the things that, in fact, impacts on this debate overall is the vast majority of people do not have the time to do what the acting chairman and I are doing or any of the members of this committee, or that you all have done. You know it, we hopefully know it, but the vast majority of Americans do what we do on everything else. They are looking at people they respect and are saying well, if it is good enough for them, it is good enough for me as I respect them. Or if they don't like it, I don't like it. That is not an irrational thing to do. So, I want to tell you that I think it is very important you are both here. I think it is fair to say the three of us, you two and me, have been on the opposite sides of more debates than we have been on the same side. General Scowcroft. I believe so. Senator Biden. So I want to thank you for being here. I would conclude, Mr. Chairman, since Mr. Kerry is not here quite yet---- Senator Hagel. Just go ahead, Senator Biden. Senator Biden [continuing]. By saying one of the things we talked about in terms of inspections before. Mr. Perle, who is always articulate, Mr. Perle made the point that what is going to happen here is we are going to have these rogue nation guys on the teams, meaning Iran, coming into the United States, inspecting, carrying little gadgets in their pockets and learning all there is to know about either trade secrets and/or a capacity to make chemical weapons better when they get home. On Part II, paragraphs 1 and 4 specify that we can deny individual inspectors if we give notice. So no Iranian ever has to inspect an American facility if that is the decision we make. It is not a requirement. The good news about this is you may ask well, couldn't they deny us inspection. Yes. Yes, but we have allies, like France, Britain, and Germany who are part of this operation. We share with them a lot of this, our technological capability of detection. So, the fact that we would be denied inspection does not hurt us very much, having an inspector on a team. But their being denied at least should satisfy some of our critics of this treaty as to somehow they are all of a sudden going to be able to learn all there is to learn. I find it interesting that when we thought, as a Nation, and other nations thought that chemical weapons were a useful tool of war, we did not have a vial of it, we did not have a canister of it, we did not have a truck load of it, we did not have a warehouse full of it. We had hundreds of tons of it. So the idea when people say to me, isn't it true that in a chemical plant, or a fertilizer plant, or a pharmaceutical plant they could be producing chemical weapons, the answer is yes, they could. We might not be able to detect it. But let me tell you something. I think the image, General Scowcroft, is people are thinking of a Japanese guy with sarin gas in the subway taking on the U.S. Army. I really mean that. I am not being facetious. Listen to the distinguished Senator from California. It is a legitimate concern. I think we have to kind of remind ourselves. We are not seeing the forest from the trees. Cheating will occur. But the idea that enough cheating could occur that the U.S. military would be in ulti- mate jeopardy of losing a war--not a single encounter but a war--that we would be prostrate is bizarre. It is absolutely bizarre. I just think in terms of keeping the focus here, when you argue on the other guy's terms, you tend to lose the argument. The terms we tend to argue on--at least I do, because I am so acquainted with the detail of this thing. I get so into the detail of it I argue about the specifics, when you can't lose. That is why I conclude by thanking you, General, for your overall statement of the generic approach to this thing and why this is in our interest. It is in our interest, because the idea that somebody can cheat is true. But the idea that somebody could cheat enough to become a world power that is going to defeat the United States of America, the idea that we are going to be in a position where these rogue nations are going to gain all our trade secrets and build better Chevettes or Corvettes that we build, or our pharmaceutical products, is, at best, to use your phrase, General Rowny--and you are always a diplomat. You said you think this example is a little overdrawn. I think that is a mild understatement, a mild understatement. You will be glad to know that wasn't a question. I just cannot tell you how much I appreciate people of your caliber being here. I know it is not easy, General, to be here. All those guys were here. You sat on the same side of the table with them for a long, long time, as have you, General Scowcroft. This is an issue on which reasonable and honorable men can disagree. But I think the break point basically divides generally those who think arms control can be a useful tool for national security, who fall on this side (indicating), and those who think arms control generally is a bad idea, who fall on that side. I think if you look down the line, that is the ultimate distinguishing feature about where people fall on this treaty. Ambassador Rowny. Senator, if I can elaborate on that, I agree with you that there are people who believe that all arms control treaties are good, and there are some who say all arms control treaties are bad. I happen to have been all along for good arms control. Senator Biden. I know that, General. Ambassador Rowny. When I resigned in protest over SALT II, it was difficult, because I was drummed out of the Army. But later, when we fixed the flaws of SALT II, we got a good treaty: START I. START I reduced from 15,000 to 8,000 weapons on each side. As I said before, you cannot do this in a vacuum. You have to always do it with the threat of being able to enforce the treaty, and without that, I don't think arms control is useful. That is why I would like to see pressure put on Russia now to have the Duma ratify START II. I have been working on this idea for 3 years, and believe that we should go even further by moving to START III. Senator Biden. I agree with you, General. Ambassador Rowny. The idea is to get good arms control agreements and also to have them bolstered with good, enforceable methods of carrying them out. Senator Biden. I'll make you a bet that I hope I never win. If we do not ratify the CWC, the chances of the Duma ratifying START II, irrespective of all other questions, I think is remote. It is remote at best. It is difficult now and you are right. The only point I want to make--and, Mr. Chairman, I have gone way over my time--is you are a man of principle, General. That is the only point I was making or attempting to make. I hope I made it clear. You are a man of principle. You gave up a lot on a principle, a principle. So, when people suggest--and no one here has, friend or foe--when people suggest that people are orchestrated to come here, General Scowcroft is a man who has taken on me in this committee, and the Democrats time and again. He is a guy who in my view educated my best friend, Bill Cohen, and that is why he is Secretary of Defense. General Rowny is a man of absolute principle who thinks that good arms control is as he defined it, and there is good arms control. The fact that you both are here I think is a big deal. It reinforces my view of this treaty, quite frankly, because we all look to the people we admire as to whether or not they like it; and it reinforces our sense of the place we intellectually arrived at. The fact that you both are there quite frankly just reinforces and makes me feel better about my decision. Senator Hagel. If I could follow up, General Rowny, on something you mentioned earlier, you mentioned that you thought this was a flawed treaty, like I believe you said most are, but fixable. I think you mentioned specifically Paragraph 3 of Article X. What other areas do you think need to be addressed? Ambassador Rowny. Just one other area, Senator. That is the one on tear gas. I have never understood this. It has a long history. As you know, President Ford issued an executive order. Brent Scowcroft played golf with him a good deal, and he might be able to understand that executive order at that time. But I felt that the idea of prohibiting the use of tear gas in times of war, I have always felt that was a mistake. I would like to see that one fixed in some way. That is the only other flaw that I see in the treaty. Senator Hagel. To each of you, Admiral Zumwalt mentioned sanctions on those signatories who might violate the convention. What realistically are we talking about when you say sanctions? Iran is a signatory. They violate inspections. If we find they have violated the convention, what do we do? General Scowcroft. Well, I think sanctions run all the way from doing something that makes you feel good when you really don't want to take action but you have to do something to what I would call sanctions on Iraq right now, which are effective. They are good. UNSCOM is over there, they are rooting around, and they are finding out all kinds of things. That is the ultimate in sanctions. Senator Hagel. Would the entire body, as you read this treaty, be involved in the sanctioning process of a violating nation? General Scowcroft. I think in the end, Mr. Chairman, sanctions depend on the national interest of the country whatever a treaty says. We could have responded when Iraq used chemicals against Iran or against its own people. Politically, nobody did; and they didn't, because there were other kinds of things that militated against it. I think you always have to look at sanctions in that light. Collective security is a chimera. It is never going to work, because when you don't know who the enemy is, then you cannot defend against it. So every country is going to consult its own national interest when it decides whether or not to go with sanctions. That is where the United States is so important, because when we decide, we can get a lot of people along with us. When we sit on the sidelines, there isn't anybody else to pick up the ball and carry it. Senator Hagel. Thank you. General Rowny. Ambassador Rowny. I have a less optimistic view about sanctions. I think that sanctions can be helpful, but I think in the end, you have to use more than sanctions in critical cases. So I would say: use sanctions. If they work, fine. If they don't, don't hesitate to use your military muscle, and I think in some cases you have to. The Chemical Weapons Convention is important; but we have a more sinister set of circumstances facing us down the road, and that is the biological warfare issue. The Biological Weapons Treaty does not have any of the verification procedures contained in the CWC. As you know, Russia denied developing anthrax. Now there are reports that they have developed a new biological weapon which is not detectable. There is a vast difference between chemical and biological weapons. A chemical weapon will disperse and you can protect against it. However, biological weapons do not disperse but grow. So I would hope as soon as this treaty is ratified that the Senate, and this committee in particular, turn their attention to the possible dangers of biological warfare, which, in my view, are more devastating than chemical weapons. In this connection, I would not hesitate to go beyond sanctions and use whatever it takes to prevent against this great scourge. If what happened with just a few whiffs of sarin gas in Japan were to happen in this country, I think we would never forgive ourselves. Senator Hagel. Thank you. Senator Biden. Senator Biden. General, you just made, again, the point that I think it is important to keep in mind. You heard the last panel, all brilliant people, all decent, honorable people. This is the dividing line again. They said not only is this treaty bad, but if we ever tried to do anything in biological weapons, which is less verifiable, it would be a disaster. I just want to keep reinforcing the point here. I happen to agree with you completely, General. People fall down on most of these issues based on which side of this treaty line they fall on. As you heard spontaneously, three of the four witnesses said by the way, this is bad, but if you guys ever start looking at biological weapons, that would even be worse. Now the question I would like to ask you is--or I guess I would make more of a point and would ask you to respond. In my view, when you were dealing and this administration was dealing, General Scowcroft, with Korea's attempt at, desire to, and potentially having achieved a nuclear capacity, nuclear weapons, there was a lot of loose talk up here with guys like me and others. It got all around. I refer not to you but to us, to me. We said if they do develop or are on the verge of developing that capacity, we may very well have to use preemptive military action. That was talked about around the world. I cannot fathom even being able to raise that issue had we not been part of the Nuclear Nonproliferation Treaty. If there were not an international norm established, the idea that in capitals--and I was in Europe at the time as well--the idea that in capitals of the world there was no commitment to use force, but no commitment to rule out the use of force, there is no way, in my view, there would have been any--any--ability to even contemplate that and to gain anything remotely approaching international understanding for the possible need of preemptively using force. Now I am not suggesting that you suggested that, General. I want to make the record clear. General Scowcroft. I did. Senator Biden. Well, OK. I am not speaking for you now. But I was up here, as you will recall, saying the same thing that you recommended. So, again, I state it to reinforce a point that seems to get lost as we focus on these individual trees in this forest. This is that national and international norms make a difference. They make a difference. They are not dispositive in every case, but they make a difference. Had we followed Ambassador Kirkpatrick's notion of never having gone forward with the Nonproliferation Treaty, the idea that we would have had the consensus to consider--and I believe, General, your statements and recommendation were part of the reason why, ultimately, it did not go to the point we worried about it going. Now I am not now here positing where it is. At any rate, if you would like to comment, fine, but there is no need to comment. I just think international norms make a big difference. General Scowcroft. Well, one of the things that we did not really discuss this afternoon and that I thought about putting in my remarks, but I did not want to be accused of being ``goody-goody'' is that the very fact that you mobilize world opinion and say these things are bad, we are going to mobilize the international community against them, this does put pressure on the hold-outs. If they are doing things wrong, it is easier to call attention to it. We have no coordinated kind of social, if you will, pressure on the rogue states right now in this area. Senator Biden. That's right. I agree. Senator Hagel. Senator, are there any more questions? Senator Biden. No. Again, gentlemen, particularly for the way you got bounced around by me in terms of timing on this, I just cannot tell you how much I appreciate your being here and how important I think it is that you are here. Thank you both. Senator Hagel. On behalf of the committee, thank you. Just as the other panel, you all have brought a tremendous amount of experience and insight to this. As you suggested, General Scowcroft, this is a critically important issue for this country and the world, and we need to spend as much time as we have been spending and that we will spend to air it all out. So on behalf of all of us, thank you. Senator Biden. Thank you. Senator Hagel. We are adjourned. [Whereupon, at 5:20 p.m. The committee adjourned, to reconvene at 2:03 p.m. on Tuesday, April 15, 1997.]