Senate Testimony Regarding Ratification of Chemical Warfare Convention

April 9th, 1997

STATEMENT OF DOUGLAS J. FEITH, 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.

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.

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.

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