EXCERPTS OF TESTIMONY BY FRANK J. GAFFNEY, JR. before the SENATE ARMED SERVICES COMMITTEE

18 August 1994

TOXIC TREATY: WHY THE U.S. IS BETTER OFF WITH NO CHEMICAL WEAPONS CONVENTION THAN THIS ONE

The CWC will — on balance — leave us less secure against chemical attack, not more [due to] the following key considerations…:

 

1. The CWC does not actually ban all chemical weapons or production capabilities….[This reflects] a fatal flaw in the treaty’s most fundamental premise: The inherent capability to produce toxic agents or to alter chemical compounds to increase their lethality exists throughout the industrialized world — and increasingly throughout the developing world, as well. The CWC will not change that fact; neither will its verification provisions assure that such assets are not used to manufacture chemical weapons.

 

2. The CWC does not require all nations, or even all nations suspected of having dangerous chemical arsenals, to subscribe before it goes into effect….As the United States government is committed to being among those first sixty-five, come what may, the terms of the treaty will be binding upon the United States whether or not dangerous countries like Iran, Iraq, Syria, Libya or North Korea are signatories. Worse yet, some of these rogue nations have already served notice that they do not intend to do so. The United States could, therefore, face in the future chemically armed adversaries without an in-kind retaliatory capability to deter such an attack.

 

3. Covert chemical weapons production and stockpiling prohibited by this treaty cannot be confidently detected or proven….The fact that the verification regime associated with the Chemical Weapons Convention is the most expensive, intrusive, complex and burdensome ever negotiated does not alter the fact that it will still not be the one thing it needs to be: effective….Some CWC proponents have begun to argue in defense of the treaty that its unverifiability is less important than the contribution it will make to helping us know more about the many nations engaged in chemical weapons proliferation — more, they argue, than would be the case without the treaty. Past experience suggests, however, that the very fact that we are party to a treaty regime may actually make it less likely that we will detect and seek redress of violations.

 

4. The CWC will actually adversely affect U.S. national security by:

    

   1. Eliminating a proven deterrent to chemical attack [i.e., the United States’ in-kind retaliatory capability].

    

   2. Eroding defenses against such attack….What is at stake is not merely the survival of our troops on future battlefields….An enemy who did not have to fear U.S. retaliation in-kind could tailor the targets, chemical agents and delivery systems used in his attack so as to create distinctly asymmetrical operating conditions for the two sides….Of even greater strategic significance can be the vulnerability of civilian populations — particularly those in proximity to the battle zone, but also those well behind the lines. These are potential targets that neither Gen. Shalikashvili nor the Clinton Administration are talking about defending.

    

   3. Degrading intelligence about the chemical warfare threat….In the presence of a treaty, however, anyone who was inclined to call attention to such developments was sharply challenged — not on the basis that the evidence was inadequate — but on the basis that they were enemies of arms control. So insidious is this phenomenon that it even winds up skewing U.S. intelligence. Instead of the best evaluation of available information, intelligence judgments become contaminated with political and legal considerations. The result: Thanks to an ineffectual arms control agreement, the American people and their elected representatives are less informed about the real magnitude of the threat than they are entitled to be and need to be. And

    

   4. Denying our military the latitude to use non-toxic chemical agents like tear gas in critical situations….[One particularly] appalling aspect of the Chemical Weapons Convention [is] the Clinton Administration’s decision to adopt what might be called a "narrow interpretation" of one of its provisions, Article I (S). Pursuant to this interpretation, President Clinton intends to issue a new executive order upon ratification of the Convention that would prohibit the U.S. military from using non-toxic riot control agents (RCA) under scenarios in which such use might save lives.

       

      According to the Clinton Administration, for example, our armed forces could not use tear gas in an international conflict in which enemy combatants employed women and children as shields while prosecuting their attacks. Moreover, in the event of a significant internal disturbance — say a protracted Kent State-style melee or urban riots — active duty, reserve or National Guard units may have to shoot crowds of American citizens rather than disperse them.

       

      Understandably, the uniformed military has no interest in being put in such positions. It was for precisely that reason that the service chiefs insisted on a broader interpretation of Article I (S) throughout the negotiation of the CWC, during the period subsequent to its signature and up until the moment this Spring when they were overruled by the Clinton White House. What is more, it is a documentable fact that they were repeatedly assured such a broad interpretation was and would remain the U.S. government’s position.

Unfortunately, the history of the Chemical Weapons Convention is replete with examples in which such interagency understandings were violated or otherwise sabotaged by those committed to reaching a chemical weapons ban at any cost. In fact, the sell-out of the armed services’ position on RCAs closely fits the pattern established in 1984 when the Secretary of State unilaterally announced in Stockholm that the United States would table a draft CW convention — in the process breaching an agreed interagency position against such an initiative.

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The costs associated with the Chemical Weapons Convention are not likely to be limited to a severely reduced American capability to deter chemical attack; a diminished ability to defend against it if it occurs; a possibly dangerous beclouding of intelligence assessments concerning its probability; and the elimination of important non-lethal military systems. There will also be literal costs — significant financial burdens of both a tangible and intangible character — that will be imposed on the U.S. taxpayer and on American industry pursuant to this treaty.

The Chemical Weapons Convention requires all producers, processors, consumers, importers and exporters of all the scheduled and certain non-scheduled chemicals to submit data and/or be subjected to on-site inspections. ‘Consumers’ are those companies which use chemicals in the process of manufacturing other goods. This group includes at a minimum the pharmaceutical, petroleum, mining, aerospace, electronics, semiconductor, food, textile and cosmetic industries. No one knows exactly how many companies may be affected but I understand that the Commerce Department has written to some 25,000 U.S. firms that it thinks might be subjected to some kind of CWC compliance requirements. (There has reportedly been a very low rate of response to date. This suggests that the United States will be unable to meet the CWC’s stringent deadlines for supplying required industrial data to the treaty’s international bureaucracy.)

The direct financial costs to industry can safely be said to be substantial even if they can not be estimated with precision at this time. Among the uncertainties are: how many companies will be "captured" by the CWC, how many of the captured facilities wind up getting inspected and how often and to what extent are those facilities obliged to suspend operations (either partially or completely) for the duration of an inspection? As a result, estimates range to as high as several hundred million dollars annually. What is clear is that the full cost of inspections and data reporting will be borne by industry and industry alone.

* * *

Every bit as troublesome are some of the more intangible costs to be expected. These include the heightened risk of industrial espionage during inspections and the possible loss of proprietary business information through other means. Since many of the affected American companies are world leaders in their industries, the loss of such data could significantly and adversely affect their market position.

It would be one thing if the Chemical Weapons Convention actually would rid the world of chemical weaponry. I am confident that most American taxpayers, employers and employees would willingly make reasonable sacrifices for such a desirable objective. The question is, if the CWC falls far short of that goal — and worse yet, does not actually serve vital national security interests — are the real and expensive sacrifices that will nonetheless be required of us worth making?

* * *

More to the point, aren’t American companies and citizens entitled to know what the real costs are likely to be before they are saddled with them? These amount, as Senator Cohen put it last week, to "unfunded federal mandates" — something I gather that is in rather bad odor at the moment. And the truth of the matter is that the vast majority of those corporations who will wind up paying much of the bill for the CWC have no idea what is coming and what will be entailed. And, if the Clinton Administration has its way, they are unlikely to find out until it is too late, given that the implementing legislation and other particulars of treaty compliance will not be considered until long after the Convention is ratified.

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There is yet one more danger likely to arise should the Chemical Weapons Convention be ratified: It is evident that those who believe they can negotiate away the global threat posed by chemical weapons are intent on fashioning additional agreements whose implications for the safety of our men and women in uniform, for their loved ones at home and for the national security as a whole may be even more dire.

Apparently, preeminent among the new accords now in the works is an agreement that would purport to rid the world of nuclear weapons. While I am confident that most members of this Committee would recognize such an initiative for what it is — a mad utopian delusion — it has recently become clear that the Clinton Administration is intent on pursuing it.

The latest, and most compelling evidence of the Administration’s determination to effect "denuclearization" can be found in its vitriolic response to a speech given three weeks ago by my colleague, Kathleen Bailey. Dr. Bailey had the temerity to point out — in a very analytical and non-polemical fashion, I might add — that there was simply no way nuclear weapons could be verifiably banned. I would encourage every member of the Committee to examine this speech….The Department of Energy, the Arms Control and Disarmament Agency and Dr. Bailey’s employer, the Lawrence Livermore Laboratory, have denounced her remarks and disassociated them from the official views of those organizations or the U.S. government.

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The [25 May 1994 Senate] Banking Committee’s hearing [concerning evidence that chemical and/or biological weapons were used against U.S. forces in the course of the war with Iraq] was not the last of its kind. Indeed, whatever the truth of the allegations against Saddam Hussein, there will in the future be even more painful hearings before the United States Congress examining the use of chemical and biological weapons against American military personnel and perhaps even our civilian population.

Unless the Armed Services Committee steps into the breach — subjecting the CWC to rigorous scrutiny, documenting its fatal flaws, and issuing a report that recommends against Senate approval of this convention — these future hearings will doubtless deal harshly with this failure of oversight. There will be hell to pay for those who allowed an agreement to pass that increases the vulnerability of our troops; that misled our public — and publics around the world — about the continuing threat of chemical warfare; and that may actually have served to increase that threat by legitimating dangerous nations all too happy to be party to the hoax known as the Chemical Weapons Convention.