Truth or Consequences #11: Clinton’s ‘Changes’ To The C.W.C. Are Necessary, But Clearly Not Sufficient

(Washington, D.C.): One way or the
other, by this Thursday night the Senate
will have determined who to believe in
the end game of the Chemical Weapons
Convention (CWC) debate: the formidable
Reaganesque team — including the likes
of Caspar Weinberger, Jeane
Kirkpatrick, Donald
Rumsfeld, Jim
Schlesinger and Dick
Cheney — opposing this treaty,
or the Clinton-Bush team furiously
lobbying for its ratification. As of this
writing, even the President’s point-man
in the Senate, Minority Leader Tom
Daschle, says the prospects for approval
are no better than 50-50.

President Clinton apparently is
pinning his hopes for Senate consent to
this controversial Convention on a
classic Washington dodge: When in
doubt, substitute process for substance.
Over the past three months, Mr. Clinton’s
representatives, from National Security
Advisor Sandy Berger on down, have
engaged in backroom negotiations with
Senators and their staff in the hope of
winning over enough Republican votes to
achieve the supermajority of 67 the
Constitution requires for treaty
ratification.

Now, thanks to what the Clinton
Administration claims has been its
tremendous flexibility, 28 out of 33
senatorial concerns have been met. While
five issues remain in fundamental
disagreement, the President and his
surrogates assert that what has been
achieved is good-enough-for-government-work.
The rest, they say, are “killer
amendments” that must be rejected in
order to save the treaty, show U.S.
leadership and prevent America from being
indistinguishable from Libya.

What ‘Concessions’?

Such assertions display a low regard
for the intelligence of the average U.S.
Senator — to say nothing of the judgment
of the institution as a whole. The
truth is, the majority of the agreed
conditions to be attached to the
resolution of ratification do not amount
to much. They have the effect of
: 1) restating existing constitutional
arrangements and protections and making
clear that future taxpayer-underwritten
spending associated with this treaty will
be subject to the annual congressional
oversight and appropriations process; 2)
requiring reports from the Administration
and certifications from the President
that are sufficiently anodyne that the
executive branch can live with them; and
3) clarifying that the United States’
interpretation of the CWC is consistent
with existing U.S. policy.

1) Affirming the Constitution:
After days of negotiations on some points
— notably, what is known as the
“Helms Proviso” which declares
that this treaty does not alter the U.S.
Constitution’s status as the
“supreme law of the land” —
the Clinton Administration and its
surrogates on Capitol Hill agreed to
seven conditions that confirm the
executive branch’s willingness to comply
with its constitutional responsibilities.
These include (identified by the item
number used to identify them in the
Resolution of Ratification):

• #1. Reserves the Senate’s
  right to attach reservations
  to the treaty notwithstanding the
  CWC’s Article XXII prohibiting
  such reservations. The idea that
  this is a concession is
  preposterous; if anything, it is
  an affront to the Senate that it
  was presented with a treaty that
  tried to deny it that right. Even
  if this condition were a
  victory for the Senate, it would
  be an empty one since the Senate
  will not be attaching
  reservations.
• #6. Assures that amendments
  to the Convention will be
  submitted to the Senate
  for advice and consent. Only an
  Administration that has
  repeatedly flouted the
  Constitution by trying to deny it
  the opportunity to approve
  substantive amendments to the ABM
  and CFE Treaties would consider
  this a concession.
• #13. Establishes that the
  President will consult
  with the Senate in the event of
  non-compliance by other
  parties with their obligations
  under the CWC. One would hope so.
• #12. Imposes the Helms Proviso
  (see above).
• #17. Adopts a Sense of the Senate
  declaration concerning limitations
  implied by this treaty on the
  Senate’s role to provide advice
  and consent via
  amendments or reservations. This
  is a non-binding non-concession.
• #20. Confirms that Congress
  retains the right to provide
  appropriations for the
  organization implementing the CWC
  (i.e., the Executive branch
  cannot guarantee an
  appropriation). This is so
  central to our form of government
  as to be ineligible for
  consideration in the
  “concession” category.

The one remotely significant
constitutional condition to which the
Administration ultimately agreed is Item
#28 establishing that a criminal
search warrant will be necessary for
non-voluntary challenge inspections. href=”97-D55.html#N_1_”>⁽¹⁾
Until very recently, the Clinton-Bush
team had steadfastly denied that any such
protection was needed and resisted
adopting this language.

Important as this affirmation of the
Constitution is, however, since there is
no requirement in the treaty for the new
UN-style inspection bureaucracy to offer
probable cause, it seems likely that
searches will not be possible unless U.S.
businesses “volunteer” to
submit to them. Since the Clinton
Administration’s view will surely be that
failure to permit such inspections will
ensure that other countries opt out as
well, it is a safe bet that the Feds will
find ways to make companies
“volunteer.”

The CWC’s draft implementing
legislation — which the Senate has
agreed to act on, if the treaty is
ratified, before the Memorial Day recess
and after no more than four hours of
debate — provides clues as to how
the government will make American
businesses “offers they can’t
refuse.” This legislation
would make it possible to assess
uncooperative companies the costs of
securing a search warrant and to deny
such companies the opportunity to do
business with the federal government in
the future. Unsaid, but always an option,
are other coercive techniques like the
prospect of harassment from agencies like
the EPA, OSHA, INS or IRS. Unfortunately,
the “agreed” condition to the
CWC provides no protection against this
sort of practice.

2) Conditions requiring
anodyne reports and certifications from
the Administration: The
Clinton-Biden team also agreed to a
series of non-burdensome — and, if past
experience is any guide, not particularly
useful — reports. These include:

• #4. Requires a report concerning cost-sharing
  arrangements with the
  Organization for the Prohibition
  of Chemical Weapons (OPCW).
• #8. Requires the President to
  conduct a review of his
  hopelessly muddled “Negative
  Security Assurances” policy
  — governing the circumstances
  under which nuclear weapons would
  be used against other countries
  — and report his findings.
• #10. Requires a country-by-country
  compliance and monitoring report.
  Similar reports have be
  adulterated, deferred and ignored
  by successive Administrations for
  years.
• #11. Requires a report to address
  current deficiencies and
  proposed enhancements to U.S.
  chemical and biological defenses.
  This report may or may not
  accurately identify shortfalls
  (notably, the virtually complete
  absence of civil defense against
  such attacks); this condition
  certainly provides no assurance
  that funding to correct such
  shortfalls will be sought by the
  Clinton Administration or
  appropriated by the Congress.
• #5. Requires a presidential
  certification that U.S.
  sources and methods will be
  protected in the course
  of intelligence-sharing
  contemplated by the CWC. Any such
  certification, short of one which
  declared that no U.S.
  intelligence would be shared,
  will be laughable.
  Intelligence-sharing with the
  OPCW — a multilateral
  organization that will be riddled
  with foreign spies — will, by
  definition, result in the
  compromise of U.S. sources and
  methods.
• #7. Requires a presidential
  certification that the treaty
  will not require the U.S. to
  modify or weaken its national export
  controls. He must also
  certify that the CWC will not
  undermine the informal Australia
  Group of chemical suppliers in
  the near-term and report yearly
  that the CWC is not having that
  effect. Unfortunately, Articles X
  and XI explicitly contemplate
  technology-sharing that is, on
  its face, inconsistent with
  existing American export controls
  and embargoes (notably against
  Iran and Cuba) and corrosive —
  if not lethal — to voluntary
  arrangements like the Australia
  Group.
• #9. Requires an initial
  presidential certification and
  subsequent annual reports
  assuring that U.S.
  industry is not being harmed by
  the limitations imposed on
  chemical weapons listed in
  Schedule 1 of the CWC.
  It is a safe bet, as former
  Secretary of Defense Donald
  Rumsfeld recently testified, that
  the large chemical manufacturers
  who helped to draft this treaty
  have fashioned arrangements on
  this score that will not impinge
  on their business interests.
• #15. Requires a presidential
  certification that the United
  States will not provide
  defensive technology pursuant to
  the CWC’s Article X to terrorist
  states that become
  parties to the CWC. The
  Administration claims that it
  only intends to provide medicine
  and antidotes to such countries.
  Even if true, this does not, of
  course, prevent other nations
  from fulfilling their obligation
  to transfer advanced chemical
  defensive gear.
• #16. Requires the President to
  certify when confidential
  business information has been
  compromised by the OPCW
  to the detriment of American
  companies or persons. If the
  organization refuses to
  facilitate the prosecution of
  those responsible (a predictable
  outcome), the U.S. can withhold
  50% of its annual tithe. Such an
  action may or may not exact a
  pound of flesh from the OPCW; it
  certainly will not compensate the
  injured parties in the U.S.
  private sector.

3) Clarifying exactly how the
U.S. interprets certain CWC provisions: The
Clinton Administration has agreed to
issue a number of clarifications that
basically reaffirm existing U.S. policy.

• #19. This provision makes clear
  that the CWC will have no
  effect on terrorism.
  Such a clarification is
  particularly welcome in the wake
  of Secretary of State Madeleine
  Albright’s assertion as
  recently as yesterday that
  the CWC would prevent repetitions
  of acts of terrorism like that
  perpetrated by the Aum Shinrikyo
  cult two years ago. Not only is
  that statement contradicted by
  the language Secretary Albright’s
  Administration has agreed to, it
  is flatly rebutted — as former
  Secretary of Defense James
  Schlesinger noted on the Fox News
  Sunday program of 20 April 1997
  — by a report published by the Clinton
  CIA: “Irrespective of
  whether the CWC enters into
  force, terrorists will likely
  look upon chemical weapons as a
  means to gain greater publicity
  and instill widespread fear. The
  March, 1995, Tokyo subway attack
  would not have been prevented by
  the CWC.” href=”97-D55.html#N_2_”>⁽²⁾
• #21. The U.S. On-Site Inspection
  Agency is authorized to help
  U.S. firms try to mitigate the
  damage likely to arise from
  routine or challenge inspections.
  Unfortunately, mock inspections
  have demonstrated that such
  prophylactic efforts, while
  expensive — for large
  installations as much as $500,000
  per inspection — cannot assure
  that such intrusive visits will
  not result in the loss of
  proprietary business or
  classified national security
  information.
• #14. The United States shall not
  allow Russia to make its deposit
  of the instruments of
  ratification contingent upon the
  U.S. paying for Moscow’s chemical
  demilitarization program.
  Regrettably, this predictable
  maneuver to dun the American
  taxpayer will probably arise not
  with respect to Russia’s
  ratification of the treaty, but
  with its implementation.
  Such has been, after all, the
  experience with the 1990
  U.S.-Russian Bilateral
  Destruction Agreement — which
  the Kremlin continues to refuse
  to honor.
• #26. The President has renounced
  his earlier intention to
  rescind an Executive Order
  first issued by President Ford in
  1975 and affirmed by President
  Bush in 1992 governing
  the U.S. military’s use of
  non-lethal Riot Control Agents
  (e.g., tear gas). As a result,
  this arms control agreement will
  not have the perverse, not to say
  bizarre, effect of requiring
  American troops to use lethal
  force where non-lethal techniques
  could allow downed aircrews to be
  recovered and dispersing of
  civilians being used as screens
  for enemy combatants without
  unnecessary loss of life. href=”97-D55.html#N_3_”>⁽³⁾

The Bottom Line

The agreed changes are on balance
desirable. In the case of the
Constitution-conforming conditions
(especially the search-and-seizure
condition) and the riot control agent
clarification, they are even necessary. It
is a great credit to Senator Helms that
they have been achieved. Had it
not been for Chairman Helm’s
much-maligned refusal to rubber-stamp the
CWC, Sen. Richard Lugar would long ago
have foisted a resolution of ratification
on the Senate that required no search
warrants under any circumstances and that
prohibited the use of tear gas in
circumstances where its use is clearly
desirable.

These changes are not,
however, sufficient to make the treaty
consistent with U.S. national interests.
For it to be remotely so, the
treaty will have to: be genuinely global;
meet a higher standard of verifiability;
and be amended to eliminate altogether
its absurd obligation to transfer
technology directly relevant to chemical
warfare to countries like Iran, Cuba and
China.

These, however, are improvements the
Clinton-Bush team refuses to allow into
the resolution of ratification. It is
important to note that such changes would
bring the present treaty into closer
conformity with the vision of a Chemical
Weapons Convention laid out by President
Reagan in 1984.⁽⁴⁾

Since the CWC’s proponents insist on
giving Mr. Reagan credit for negotiating
this treaty, the least they can do is
acknowledge that there are critical
differences between his standards and
theirs. And Senator Lott — who
faces what is, arguably, his greatest
test of leadership to date on this
Convention — owes it to the Nation, his
Party and his future prospects to ensure
that a CWC lacking the sorts of
conditions Ronald Reagan would have
required does not receive the Senate’s
advice and consent.

– 30 –

1. See in this
regard, Truth or Consequences
#1: Center Challenges Administration
Efforts To Distort, Suppress Debate on
CWC — Dangers To Americans’
Constitutional Rights ( href=”index.jsp?section=papers&code=97-D_14″>No. 97-D 14, 28
January 1997).

2. See Truth
or Consequences #6: The CWC Will Not
Prevent Chemical Terrorism Against the
U.S. Or Its Allies ( href=”index.jsp?section=papers&code=97-D_30″>No. 97-D 30, 22
February 1997).

3. See
Truth or Consequences #3: Clinton ‘Makes
A Mistake About It’ In Arguing the CWC
Will Protect U.S. Troops ( href=”index.jsp?section=papers&code=97-D_21″>No. 97-D 21, 6
February 1997).

4. See
Truth or Consequences #4: No DNA Tests
Needed To Show That Claims About
Republican Paternity of CWC Are Overblown
(No. 97-D 24,
10 February 1997).