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.
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.” - #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.
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 (
January 1997).
2. See Truth
or Consequences #6: The CWC Will Not
Prevent Chemical Terrorism Against the
U.S. Or Its Allies (
February 1997).
3. See
Truth or Consequences #3: Clinton ‘Makes
A Mistake About It’ In Arguing the CWC
Will Protect U.S. Troops (
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).
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