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NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1997

(Senate - June 28, 1996)

Mr. LOTT. Mr. President, I ask unanimous consent that the majority leader, after notification of the Democratic leader, may proceed to the consideration of each of the following three bills; that they be considered in the following order, with no intervening business in order between the three bills; that no amendments or motions be in order to these bills:

Defend America, which is S. 1635;

A bill to be introduced by the Democratic leader, or his designee, on behalf of the President regarding national missile defense;

And a bill to be introduced by Senator Nunn regarding national missile defense.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. LOTT. Mr. President, for the information of all Senators, with respect to the Chemical Weapons Convention, the majority leader and the Democratic leader will make every effort to obtain from the administration such facts and documents as requested by the chairman and ranking minority member of the Foreign Relations Committee, in order to pursue its work and hearings needed to develop a complete record for the Senate regarding the Chemical Weapons Convention, Executive Calendar No. 12.

With that in mind, I ask unanimous consent that the majority leader, after consultation with the Democratic leader, will, prior to September 14, 1996, proceed to executive session to consider Calendar No. 12, the Chemical Weapons Convention, and the treaty be advanced through its various parliamentary stages, up to and including the presentation of the resolution of ratification; that all reported conditions and declarations be deemed agreed to; that there be two additional amendments to the resolution of ratification, to be offered by the majority leader or his designee, dealing with the subject matter of the Chemical Weapons Convention to be limited to 1 hour each, to be equally divided in the usual form; that no further conditions, amendments, declarations or understandings be in order; and there be 10 hours additional time for debate, to be equally divided in the usual form; and following the conclusion or yielding back of time, the Senate proceed to the adoption of the resolution of ratification, all without further action or debate.

The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.

Mr. LOTT. Finally, I ask unanimous consent that the bill be advanced to third reading and final passage occur at 9:30 a.m. Wednesday, July 10, 1996, and paragraph 4 of rule XII be waived.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. LOTT. Mr. President, I further state that if the resolution of ratification, with respect to the Chemical Weapons Convention, is agreed to, then I will do my best to schedule the implementation legislation, if it is available, no later than early 1997.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. LOTT. I wonder if the Democratic leader has any

comments at this point.

Mr. DASCHLE. Mr. President, let me just commend the distinguished majority leader. Like him, I was not very optimistic we would be able to get to this point. But I think it, again, demonstrates the interest on both sides in working together to accomplish a number of major legislative achievements this year, and this is a good one.

This is an important issue. It is a bill that we needed to get done. The administration is very much in keeping with our desire to see the completion of this legislation in the nearest possible time.

We have appropriations bills when we get back. I look forward to using the same approach as we try to address those as well. It will be my hope that during the month of July, we can do on appropriations what we have just done on this authorization bill.

Mr. LOTT. Mr. President, I would like to confirm what, obviously, all Senators now know. There will be no further votes today. We will be back in session on Monday, July 8,

during which time we will begin the debate that was outlined in the unanimous consent agreement with regard to minimum wage and small business tax provisions, to be followed on Tuesday by the TEAM Act. And then there will be a vote, as we just outlined, at 9:30 a.m., Wednesday of that week on the final passage of the DOD authorization bill.

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Mr. DASCHLE addressed the Chair.

The PRESIDING OFFICER. The minority leader is recognized.

Mr. DASCHLE. Mr. President, I ask the majority leader, subject to an earlier discussion we had, for the interest of Senators, if we might be able to announce that the minimum wage vote would occur after the caucuses on Tuesday, and that debate on minimum wage take place that morning to accommodate traveling Senators and the debate on the issue, and then if there are votes, for them to be stacked at that point, 2:15, we would be happy to do that.

Mr. LOTT. Mr. President, I believe that we can work together on that, and agree now that we would not have a vote on the minimum wage issue until after the policy luncheons on Tuesday. However, my intent was to complete all of the debate on that on Monday, and then have the debate on the small business packages on Tuesday. You know, we can work that out as far as the debate time. And we may need to stack some votes, or we may need to go to other issues that morning. But at the very minimum, we can agree now there will not be a vote on that until after the luncheons. Then I would like to work with the minority leader on the time for the rest of the debate.

Mr. DASCHLE. Mr. President, I am primarily interested in when the votes take place and also accommodating some Senators who want to be heard on minimum wage who will not be here on Monday. And if it were possible to accommodate them, to allow for additional comments on Tuesday morning, it would be very helpful.

Mr. LOTT. As is always the case, just like we entered into having an agreement we would have a vote on that Wednesday and final passage 30 minutes later so two Senators can be heard on issues they feel are important, I am sure we can work it out in a balanced way where there could be others that want to be heard on other subjects that morning. But we will work with the minority leader to make sure Senators have time to express their views.

I thought the main thing was just to understand we would not have a vote until after the luncheon. But I want to maintain the flexibility of what we do earlier in the day, and after the vote, so we can get as much done on Tuesday as is at all possible. We will continue to work together on that.

Mr. DASCHLE. I thank the majority leader.

Mr. THURMOND. Mr. President, I rise to address an issue of vital important to the U.S. Senate: whether the Senate should provide its advice and consent on any succession agreement regarding the ABM Treaty, especially an agreement that would convert the treaty from a bilateral agreement to a multilateral agreement. I would remind my colleagues that existing law requires any substantive modification of the ABM Treaty to be submitted to the Senate for advice and consent.

The administration has asserted that it would be inappropriate for the Senate to make a judgement about the substantive nature of any potential agreement at this point. But, if the Senate's treaty making role is to be protected, we must clearly establish our views now, especially since the implications of such an agreement are fairly clear already. To do otherwise would invite a major dispute with the executive branch in the near future and put the Senate in a position where its only recourse would be to attempt to prohibit the implementation of the agreement. In my view, multilateralization of the ABM Treaty clearly constitutes a substantive change. Let me briefly outline my reasons for coming to this conclusion.

First of all, the fundamental circumstances that produced the treaty in the first place have changed. The ABM Treaty, more than any other arms control agreement, was a product of the bipolar cold war confrontation between the United States and the Soviet Union. With the dissolution of the Soviet Union, we face strategic and political circumstances that are vastly different.

Second, by having the Soviet Union succeeded, for purposes of the ABM Treaty, by some but not all of the independent States of the former Soviet Union, each possessing full and sovereign rights under the treaty, we would be changing, limiting, and extending certain rights and obligations previously possessed by the parties. This is all but a text book definition of a treaty amendment. U.S. rights would clearly be changed given the fact that the Standing Consultative Commission, the ABM Treaty's implementing body, would now be comprised of several parties, all of whom would need to consent to changes, clarifications, or amendments to the treaty.

As the administration stated in a May 3, 1996, letter to Senator Nunn: `Each Party will participate in implementing the treaty as a sovereign entity. This includes a full and equal voice in the SCC.' When asked if the consent of all parties would be needed before the treaty could be amended, clarified, or interpreted, the administration answered: `Yes. The U.S. has insisted on a decision-making mechanism in the SCC under which legally binding obligations would be adopted by consensus.' In effect, the SCC would be transformed into a corporate body in which the United States would need to receive five, six, or more affirmative votes before the treaty could be amended. In addition, some of the new treaty partners would only have partial rights. Of the former Soviet States, presumably only Russia would be entitled to deploy an operational ABM system.

Third, the actual functional mechanics of the ABM Treaty will be changed through multilateralization. The ABM Treaty is based largely on a geographical description of the United States and the Soviet Union. It states specifically that certain large phased array radars may only be located along the periphery of the territory of the parties. In the case of the former Soviet Union, however, some such radars are now located outside Russia. The so-called Scrunda radar in Latvia, for example, is on the territory of an independent country that has categorically rejected membership in the ABM Treaty. Clearly, any agreement that addresses the successorship issue will also have to redefine these geographic aspects of the treaty, which in and of themselves will constitute substantive amendments to the treaty. In this regard, the Senate will be as interested to see which States do not accede to the ABM Treaty as it will be to see which countries do accede.

Mr. President, as we consider this important matter, which dramatically affects the Senate's constitutional prerogatives, let me also remind my colleagues of an important debate that took place in this Chamber several years ago regarding the so-called broad versus narrow interpretation of the ABM Treaty. On March 11, 12, and 13, 1987, the chairman of the Armed Services Committee, Senator Nunn, took to the floor to deliver a series of speeches criticizing the Reagan administration for having announced a new interpretation of the ABM Treaty. I do not wish to revisit the specific issues in that debate, only to remind my colleagues, especially on the other side of the aisle, how outraged they were at what appeared to be a challenge to the Senate's constitutional treaty-making role.

On March 11, 1987, Senator Nunn stated that the State Department was directly challenging the Senate's constitutional role. `This effect,' he said, `could carry over and may well produce a congressional backlash through its exercise of the power of the purse and the power to raise and support armies in a manner that would give the effect to the original meaning of the treaty as presented to the Senate.' It is precisely such a backlash that we are seeking to avoid by including section 233 in the Defense authorization bill. The administration is proceeding down a very dangerous course and we are simply trying to ensure that the Senate plays a role before we arrive at a point of crisis.

Why do I use such strong terms in describing the administration's present course? Let me be clear, Mr. President. The administration is not intending to submit any agreement to the Senate regarding ABM Treaty succession, even though such an agreement would constitute a fundamental departure from substance of the treaty presented to the Senate for advice and consent in 1972. In the same letter than I quoted from earlier, the administration makes clear that they are working on a memorandum of understanding on succession. What, I would ask, is the legal standing of an MOU? How is it possible, given the major implications of such a change, that the administration is trying to modify a major arms control treaty with an MOU, as if this were some minor agreement with a close and reliable ally?

Mr. President, I do not believe that one can avoid the conclusion that the administration is negotiating major changes to the ABM Treaty, that these changes constitute substantive modifications to the treaty and the rights and obligations of the parties, and that the Senate must be directly involved. In my view, this involvement must include advice and consent to any such agreement. The executive branch cannot simply change the entire context of a major arms control treaty and expect the Senate to stand idly by.

The administration has sought to use various analogies to other cases in which the executive branch has not sought, and the Senate has not insisted upon, advice and consent on succession. The examples of the Conventional Forces in Europe and Intermediate-range Nuclear Forces Treaties are frequently used.

In the case of CFE, the Senate specifically recognized the impending breakup of the Soviet Union and adopted provisions taking this into account during the ratification debate. In fact, the Senate was so concerned about this issue with regard to CFE that it took great care to develop a condition to the resolution of ratification specifying procedures for adding new states parties and for evaluating the implications of the withdrawal of key newly independent states from the treaty. In the case of the ABM Treaty, no such provision has ever been made, since the ABM Treaty has always been viewed in a bipolar context. If anything, the case of the CFE Treaty argues for Senate advice and consent on any ABM Treaty succession agreement.

In the case of the INF Treaty, in my view, the executive branch still should seek a formal protocol on succession. The only reason that this has not become a major issue is due to the fact that INF has already been fully implemented and there are no significant areas of contention. Unlike the ABM Treaty, there is little likelihood that the United States may require major amendments or clarifications to the INF Treaty.

In the case of the START I Treaty, the succession agreement, known as the Lisbon Protocol, was in fact approved by the Senate as part of the overall ratification process. As in the case of CFE, START I was surrounded by major succession issues that the Senate had to address in a formal manner. I think it is fair to say that neither CFE or START I would have been approved by the Senate if not for the fact that the succession issues were thoroughly addressed as part of the ratification debate. In both cases the Bush administration correctly saw that a vote of the Senate was necessary.

Mr. President, in summary, let me simply say that section 233 of the bill stands up for the prerogatives of the Senate. The fact that the administration is so opposed to it is very bothersome. This provision was approved by the committee on a bipartisan basis and I believe that the Senate should overwhelmingly endorse it.

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Mr. WARNER addressed the Chair.

The PRESIDING OFFICER. The Senator from Virginia.

Mr. WARNER. Mr. President, I want to thank the leadership on both sides of the aisle on behalf of all members of the Armed Services Committee on both sides of the aisle. We simply would not have been able to achieve what we have just announced without strong, firm commitments by both leaders. Indeed, I commend the distinguished Democratic whip who, likewise, helped in the clearance of amendments.

It is remarkable. I have served with many leaders. I will tell you, each time they arise to the challenge. And this time, indeed, both leaders did arise to the challenge. So I thank the leaders on both sides.

The PRESIDING OFFICER. The question is on the engrossment and third reading of the bill.

The bill was ordered to be engrossed for third reading and was read the third time.

Mr. WARNER. Mr. President, having worked with our distinguished chairman on the committee, I wish to compliment again his leadership in enabling this bill to come through and be acted upon by the Senate in a timely manner thereby putting us in the logical sequential order with the appropriations measure.

I wish to congratulate the distinguished ranking member, Mr. Nunn. We have worked on bills for many years together. This will be the last that we have worked on together. I shall speak about his departure at a later time.

I also wish to thank the staff on both sides who have diligently pursued efforts dramatically in the last 24 hours. I assure you we were here until after midnight last night.

Also, I wish to thank the many colleagues on our committee who took an active role in this, and certainly Senator McCain with his usual help in trying to get this series of amendments through and also working with the group of us who dealt with the time agreement which I hope will soon be adopted by the Senate.

Mr. President, I yield the floor.