EXECUTIVE SESSION-TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE UNION OF SOVIET SOCIALIST REPUBLICS ON THE ELIMINATION OF THEIR INTERMEDIATE-RANGE AND SHORTER-RANGE MISSILES-THE INF TREATY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89T00234R000100030008-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 116
• Document Creation Date: January 4, 2017
• Document Release Date: January 23, 2013
• Sequence Number: 8
• Publication Date: May 26, 1988
• Content Type: MISC

Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030008-6
S 6700 CONGRESSIONAL RECORD ? SENATE
effort to respond to the hunger crisis
In Vietnam.
The minute you mention Vietnam
and hungry people I know that elicits
an ambivalent response.
Mr. President, I introduce this con-
current resolution on behalf of Sena-
tors KENNEDY, PRESSLER, and myself
calling upon the President to address
the food shortage in Vietnam by exer-
cising powers that are statutorily au-
thorized for such disaster situations.
What I am suggesting is that U.S.
food relief could well lay the founda-
tion for the final resolution of that
humanitarian issue and the related
humanitarian issues of Amerasian
children, of the reeducation camp pris-
oners, and those issues that have been
identified that have to be resolved in
- addition to our dealing with the Viet-
namese Government in relation to
their invasion and occupation of Cam-
bodia, which is threatening, of course,
all of Asia, and which is of great con-
cern to our ally and long-time friend
Thailand. In other words, we could be
motivated by humanitarian impulses
to meet the needs of starving people
and if that does not appeal to the hu-
manitarian instinct, then let us look at
the geopolitics. It could lay the foun-
dation indeed for the resumption of
political relationships with Vietnam
which in turn could resolve the MIA-
POW problems which in turn could
help resolve the Cambodian issue,
which in turn would be stopping the
source of the refugee problem that we
have to wrestle with here year in and
year out.
So there is the geopolitical ap-
proach.
But my view is that by sending food
to Vietnam, we could embark upon a
new foreign policy that can bear re-
sults. We are now at a point where I
think we have to create new foreign
policy as it relates to Southeast Asia
and we can seize this opportunity or
we can continue to ignore it.
Mr. President, in another week the
United Nations will complete its as-
sessment of this famine situation, but
I think we should be preparing to
embark upon this kind of relief to the
Vietnamese -people, notwithstanding
the wrongness of their political ideolo-
gy as we view it, or the wrongness of
their invasion in Cambodia, which I
thoroughly condemn.
But this is a people problem, and
perhaps in addressing the people prob-
lem, we can at the same time- lay a
better foundation to resolve our politi-
cal problems.
I yield the floor.'
Mr. KENNEDY. Mr. President, I am
pleased to join in supporting Senator
HATFIELD'S concurrent resolution in
support of emergency food assistance
to the people of Vietnam.
? It is one of-the hallmarks of Ameri-
can tradition that we reach out to
assist people facing famine or grave
shortages of food wherever they may
be and whatever government they
may be under. Our humanitarian as-
sistance has always been just that?a
reflection of tIte humane concerns of
the American people.
It should be so today.
The people of Vietnam are facing a
food shortage of tremendous propor-
tions, and I believe the United States
should join the international commu-
nity in providing emergency food as-
sistance to avert a possible famine.
For the past 2 years, Vietnam has
suffered an unusual sequence of
drought, damaging typhoons, and
Insect infestations that have destroyed
much of the country's crop. Vietnam-
ese government officials suggest that
some 7 million of the country's popu-
lation are short of food and are near
starvation in some areas.
U.N. officials estimate that as much
as one-third of this season's crop may
be lost. There is likely to be a 1.5 mil-
lion ton food deficit this year alone.
As one U.N. official recently ex-
plained, "that means that the average
Vietnamese will receive only 70 per-
cent of a normal diet of rice?even less
than that in the north," which is most
severely affected by the food short-
ages.
Mr. President; all of us in the Senate
have profound differences with the
Hanoi government. These should not?
and cannot?be brushed aside. Viet-
nam today is among the very poorest
countries in the world, and a large
measure of the blame lies with that
government.
But whatever our particular views
are on those policies, it is important,
Mr. President, as I said at the outset,
that we not lose sight of the Americ
tradition of assisting those in nee
around the world.
This tradition was illustrated by ou
response to famine conditions in Ethi
opia in 1984. At that time, the Presi
dent and the American people pu
aside their objections to the policies o
the government in Addis Ababa t
assist the people in the countryside.
We should do the same today for the
people of Vietnam. We are already be-
ginning to see the first stages of the
famine conditions there. Not only are
people in Vietnam experiencing untold
suffering, but just as with other fam-
ines, Vietnamese are also beginning to
migrate abroad in search of food.
These new food refugees are now ap-
pearing in boats in Hong Kong, Thai-
land, and other parts of Southeast
Asia.
It's clearly time to move ahead to
avert further disaster for the Vietnam-
ese people, and to stem this new flow
or refugees from hunger. I would -urge
Senators to join in support of this re-
sponsive and most responsible concur-
rent resolution.
Mr. HATFIELD. Mr. President, I un-
derstand I have to ask unanimous con-
sent to submit the concurrent resolu-
tion for referral as if in legislative ses- .
sion, and I so request.
The ACTING PRESIDENT pro tern-
pore. Without objection, it is so or-
dered.
May 26, 1988
The concurrent resolution is as fol-
lows:
S. CON. RES. 122
Whereas Vietnam is experiencing severe
food shortages that have led to hunger in
many provinces;
Whereas, according to international aid
organizations, as many as three million Vi-
etnamese civilians face critical food short-
ages;
Whereas concerned United Nations orga-
nizations already have confirmed the au-
thenticity of these food shortages and cur-
rently are in the process of conducting inde-
pendent surveys to evaluate the extent of
the hunger problem;
Whereas many refugees departing by boat
from Vietnam and arriving in Thailand,
Hong Kong, Malaysia, and other countries
of first asylum in the region are citing fears
of food shortages as a factor in their deci-
sions to flee;
Whereas these journeys by sea expose the
refugees to the dangers of pirate attacks,
boat rammings, pushbacks, and drownings
due to vessel failure; and
Whereas the sharp increase in refugee ar-
rivals in Hong Kong and Malaysia, and the
frequent instances of pushbacks off the
eastern and southern coasts of Thailand, en-
danger first asylum for all refugees of the
region: Now, therefore, be it
Resolved by the Senate (the House of Rep-
mentatives concurring), That it is the
sense of the Congress that the President
should exercise his authority to provide
international disaster assistance under
chapter 9 of part I of the Foreign Assistance
Act of 1961 in order to respond promptly
and compassionately, in cooperation with
international organizations and private and
voluntary organizations, to the urgent need
for food assistance by those civilians in Viet-
nam affected by food shortages.
EXECUTIVE SESSION?TREATY
BETWEEN THE UNITED STATES
OF AMERICA AND THE UNION
OF SOVIET SOCIALIST REPUB-
LICS ON THE ELIMINATION OF
? THEIR INTERMEDIATE-RANGE
AND SHORTER-RANGE MIS-
SILES?THE INF TREATY
THE ACTING PRESIDENT pro
tempore. Under the previous order,
the Senate will now go into executive
session and resume consideration of
Executive Calendar No. 9, which the
clerk will report.
The assistant legislative clerk read
as follows:
Calendar No. 9, Treaty Document No. 100-
11, Treaty Between the United States of
America and the Union of Soviet Socialist
Republics nil the Elimination of Their In-
termediate-Range and Shorter-Range Mis-
siles.
The Senate resumed consideration
of the treaty.
Pending: Byrd Amendment No. 2296, to
the committee condition, to establish
common understanding that the Senate's
advise and consent to ratification of the INF
Treaty is subject to the condition that the
President shall implement and interpret the
Treaty in accordance with the common un-
derstanding of the Treaty shared by the
President and the Senate.
Mr. WARNER. Mr. President, mo-
mentarily the chairman of the Armed
Services Committee and the distin-
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May 26; 1988
CONGRESSIONALRECORP ? SENATE
ians affected by inadequate food sup-
plies. It is no secret that the United
States Go rnment has no diplomatic
relationship ith the Socialist Repub-
lic of Vietnam, nd we will not normal-
ize relations wi ? Vietnam until the
POW-MIA matte is resolved and the
Vietnamese Army withdraws from
Cambodia. Let me po it out that there
are about 2,400 perso who fought in
Vietnam for whom ther still is no ac-
counting, and while i-thirds of
these cases involved servic personnel
who were considered lost at s a or pre-
sumed dead at war's end, - must
move quickly for the fullest p c sible
accounting of these brave Americ.,
But today, I turn to the immed te
question of whether the United Stat
should respond to the food shortage
afflicting millions of Vietnamese men,
women, and children.
The concurrent resolution which I
am introducing today along with Sena-
tor KENNEDY and Senator PRESSLER an-
swers that question affirmatively, in a
manner consistent with the lessons of
American history and our best human-
itarian impulses to feed the hungry as
a means of waging peace.
Some very compelling parallels can
be drawn between the current crisis in
Vietnam and the period from 1921-23
when tens of millions of Soviet citizens
were facing what the League of Na-
tions at that time termed the worst
famine in the history of Europe. The
Soviets then were considered an un-
friendly, hostile regime and the
United States had no diplomatic rela-
tionship with them. Interestingly, the
Soviets were actually holding at that
time Americans involved in World War
I. The United States thought it had 20
Americans imprisoned, but later we
discovered over 100 had seen holed up
in Soviet dungeons.
It would be no exaggeration, particu-
larly when you consider the "red
scare" tactics of the preceding Wilson
administration, to say that the Soviet
Government was every bit the anathe-
ma then that the Vietnam Govern-
ment is today.
There was a great debate within U.S.
governmental circles in those days
about whether or not the United
States should provide food to the
starving Soviet citizens, and in so
doing, provide a boost to the 1321shevik
regime.
To this question, the Secretary of
Commerce Herbert Hoover .responded
without hesitation?he arranged for
the American Relief Administration to
send in 540,000 tons of food, which
sustained 10 million people over 2
years, and saved so many lives. Inci-
dentally, Congress was no silent by-
stander. It appropriated funds for this
relief program, and with the Presi-
dent's Executive order designating
Secretary Hoover as the manager of
the program, the American Govern-
ment was on record in support of this
daring humanitarian initiative.
Mr. President, the United States can
take pride today in this enlightened
endeavor that looked beyond ideolo-
gies to the unmet human needs of suf-
fering people. I believe the United
States can apply this great precedent
to the more than 1 million children in
Vietnam under the age of 5 who are
facing "serious food shortages," as re-
ported by the U.N. Development Pro-
gram. But unfortunately, some offi-
cials in the administration are counsel-
ing the President to ignore the emer-
gency, to look the other way, and in
fact to not even talk to Vietnam about
the problem. They point instead to the
occupation of Cambodia and refuse to
become involved in the negotiated set-
tlement process.
Mr. President, as we debate the INF
Treaty, and I will address that topic in
some detail at a later time, I want to
ake one observation: If we had
osen not to speak to the Soviets
un '1 they had pulled out of Afghani-
sta we would have not treaty before
us to ? : y and no possibility for future
arms c ? trol agreements.
Mr. Pr ident, what we see emerging
is a diplo tic double standard. While
the United States is willing to talk
with the S ? 'et Government on a
range of imp i tant arms control and
foreign policy is ues, the United States
is unwilling to ta with the Vietnam-
ese Government a 4?ut the Vietnamese
occupation of C: ?bodia. Had the
United States folio - d for Afghani-
stan the policy it is fo owing for Cam-
bodia, there would ha v been no possi-
bility of a Soviet troop thdrawal, no
possibility of the repatri ? tion of the
refugees, and no prospect f peace in
that region of the world.
I condemned nearly a de, de ago
and I condemn now the Vie amese
occupation of? Cambodia and t sub-
jugation of the Laotian people.
But I rise today to condemn the
entable condition of the current di o-
matic situation: First, the Chine
have armed the Khmer Rouge and Po
Pot to the teeth without any opposi-
tion from the United States, making
this resistance group the only viable
alternative to the current government
in Cambodia; second, the United
States has abandoned any responsibil-
ity for being a player in the negotia-
tions, pretending that some magic
wand will emerge and disarm the
Khmer Rouge at the right time and
bring Prince Sihanouk to power; and
finally, third, that the United States
has adopted a strategy to resolve the
pending humanitarian issues in dis-
pute with Vietnam involving the most
improbable logistical arrangements
and low-level governmental officials.
Mr. President, one need only travel
through Vietnam and Cambodia to re-
alize that our current foreign policy is
running out of gas far short of its in-
tended goals, or as my colleague Sena-
tor PRESSLER said in Monday's New
York Times, "our policy of isolation
has reached the point of diminishing
returns."
Now the United States faces -a criti-
cal decision: Should we avert our eyes
S 6699
from the hunger and suffering of the ?
Vietnamese people? Should we allow
the millions of Vietnamese civilians
who are victims of their own economy
and system of government to go with-
out food and starve to death, when
many, of these Vietnamese were our
close allies and look to the United
States as their light of hope?
Mr. President, the same arguments
opposing food assistance to any Com-
munist country, which Herbert Hoover
disarmed 67 years ago, are being circu-
lated in Washington on the question
of food assistance for Vietnam. And
there is a school of thought which
says: The Government of Vietnam
must be punished for what it did in
the war, and since the only tool left at
our disposal is economic, we can starve
them out and let them feel the pain
for their military policies and poorly
managed economy. The only problem
with that thinking is that the Govern-
ment is not suffering?the people are.
And worse, such a U.S. foreign policy
cannot and should not survive, be-
cause you cannot build a lasting peace
in the region on the backs of broken
people and malnourished children.
Our great friend Thailand, a front-line
country whose security interests must
be protected, is in danger because
hunger is the most destabilizing force
in the world, and Thailand is seeing
this all too clearly as new waves of Vi-
etnamese are seeking asylum on Thai
soil. Our ASEAN friends also have a
serious stake in this matter, but again,
the United States can be a better
friend to them by taking an active, ag-
gressive role in the discussions taking
place within the region on how each
nation's independence and security,
can be preserved, and not by sitting
back while China brokers decision
after decision for us.
Mr. President, I am introducing a
concurrent resolution today which
calls upon the President to address the
od shortages in Vietnam by exercis-
powers statutorily authorized for
su? disaster situations.
? orts from the United Nations in-
dica ? that the squeeze of this food
shorta e will be felt in the next few
months, and so there is a time factor
which m ?t be addressed.
By sending food to Vietnam, the
United States could embark upon a
new foreign policy in the region that
goes directly to the people. If the
United States wants to pressure Viet-
nam to withdraw\ from Cambodia and
cooperate with tl*tUnited States on
the POW-MIA and other humanitari-
an issues, it can best leverage this
through policies which`a,re progressive
and aggressive, not passive and isola-
tionist. And the United States can
take full advantage of its continued
popularity with the people of Vietnam
as well as accelerate progress with the
Government of Vietnam on the POW-
MIA issue and the timetable for a Vi-
etnamese withdrawal from Cambodia,
by participating in the international
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May 26, 1988
CONGRESSIONAL RECORD ? SENATE
guished ranking member of the Intelli-
gence Committee and myself?Mr.
Holum is not present at this time?will
be sending to the desk an amendment.
The ACTING PRESIDENT pro tern-
pore. The Senator from Virginia.
AMENDMENT NO. 2302
Mr. WARNER. Mr. President, I send
to the desk an amendment on behalf
of myself and Senators Nurm, BOREN,
and COHEN and ask for its immediate
consideration.
The ACTING PRESIDENT pro tem-
pore. The clerk will report.
The assistant legislative clerk read
as follows:
The Senator from Virginia [Mr. WARNER],
for himself, Mr. NUNN, Mr. BOREN, and Mr.
COHEN, proposes an amendment numbered
2302.
At the appropriate place in the resolution
of ratification insert the following:
"The advice and -consent of the Senate to
the ratification of the INF Treaty is further
subject to the condition that in connection
with the exchange of the instruments of
ratification pursuant to Article XVII of the
Treaty, the President shall obtain the
agreement of the Union of Soviet Socialist
Republics that the agreement concluded by
exchange of notes in Geneva on May 12,
1988 between the United States and the
Union of Soviet Socialist Republics as to the
application of the Treaty to intermediate-
range and shorter-range missiles flight.
tested or deployed to carry or be used as
weapons based on either current or future
technologies and as to the related question
of the definition of the term "weapon-deliv-
ery vehicle" as used in the Treaty, and the
agreed minute of May 12, 1988 signed by
Ambassador Maynard W. Glitman and Colo-
nel General N. Chervov reflecting the agree-
ment of the Parties regarding certain issues
related to the Treaty, are of the same force
and effect as the provisions of the Treaty."
Mr. HELMS addressed the Chair.
Mr. WARNER. Mr. President, if I
might just c'ontinue for a moment, and
then I will yield to the distinguished
Senator form North Carolina.
As we will explain later as we ad-
dress this issue, the amendment will
incorporate as part of the treaty cer-
tain diplomatic notes and minutes
which then.become an integral part of
the treaty. This will make the two
items the supreme law of the land, as
opposed te an executive understand-
ing.
Mr. President, I yield to the distin-
guished Senator from North Carolina.
The ACTING PRESIDENT pro tem-
pore. The Senator from North Caroli-
na.
AMENDMENT NO. 2303
? Mr. HELMS. Mr. President, I send
an amendment to the desk.
The ACTING PRESIDENT pro tern.
pore. If the Senator would suspend for
a moment, in order for a second-degree
amendment to be sent forward, the
time for the first-degree amendment
would have to have expired.
Mr. NUNN. Mr. President, this is not
oing to be a problem. May I suggest
he Senator go ahead and make his
tatement on it. I would like to make a
atement on the first-degree amend-
ent prior to actually having the
second-degree amendment pending,
and perhaps we could then expedite
the matter.
Mr. WARNER. Mr. President, what
we intended to do was lay before the
Senate the two amendments, then we
will go in order of the first-degree, fol-
lowed by the second-degree.
Mr. NUNN. I would think it would
be logical to discuss the first-degree
amendment first.
The ACTING PRESIDENT pro tem-
pore. We can do that by unanimous
consent.
Mr. HELMS. Mr. President, I ask
unanimous consent.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
The clerk will report the second-
degree amendment
The assistant legislative clerk read
as follows:
The Senator from North Carolina [Mr.
Rums], proposes an amendment numbered
2303 to amendment No. 2302.
(a) After the words "as used in the
Treaty," delete the word "and"; and
(b) after the words "related to the
Treaty," insert the following: ", and the
agreements signed on May 21, 1988 in
Vienna and Moscow, respectively, correcting
the site diagrams and certain technical
errors in the Treaty"
The ACTING PRESIDENT pro tem-
pore. Who yields time?'
Mr. NUNN. Mr. President, how
much time is there on each -.amend-
ment, if the Chair could inform the
Senator.
The ACTING PRESIDENT pro tem-
pore. Forty minutes, equally divided,
on each of the two amendments.
Mr. NUNN. Mr. President, who con-
trols the time on the Nunn-Warner
amendment?
The ACTING PRESIDENT pro tem-
pore. The sponsor of the amendment,
Senator WARNER, would control time
for the proponents.
Mr. WARNER. Mr. President, I sug-
gest the distinguished chairman con-
trol the time. As far as we know at this
moment, we know of no opponent, and
we will carefully guard whatever
rights other Senators may have.
Mr. NUNN. Mr. President, if I could
inform the Senate, this really is an
amendment sponsored by myself, Sen-
ator WARNER, Senator BOREN, and Sen-
ator COHEN. There are really two parts
to the amendment. We will make sure
that Senator BOREN and Senator
COHEN have enough time on their part
of the amendment.
It is my understanding, though, that
we have three amendments under the
time agreement, each of which has 40
minutes, and that that time is equally
divided. That would mean that the
first-degree amendment would really
incorporate both the Boren-Cohen
amendment and the Nurm-Warner
amendment, which means we would
have a total of 80 minutes on those
two, and that we would have 40 min-
utes on the Helms amendment. I
would not think we would need any-
thing like that much time on any of
'S6701
them but that we would be able to ex-
pedite it and yield back, I hope, the re-
mainder of our time.
Mr. WARNER. In that light, Mr.
President, I think we should urge all
Senators who wish to address these
amendments to come to the floor at
this time, because it is the anticipation
of the five sponsors of the combined
amendment to yield back as much
time as possible.
The ACTING PRESIDENT pro tem-
pore. Who yield time?
Mr. NUNN. Mr. President, I yield
myself such time as I may require.
Mr. President, the amendment at
the desk has been submitted on behalf
of myself, Senator WARNER, Senator
BOREN, and Senator COHEN.
Mr. President, during the Armed
Services Committee hearings on the
INF treaty, a critical issue arose as to
precisely which types of ground-
launched missiles of INF range are
covered under the treaty. At the
heart of the issue lay a fundamental
question: In a treaty which is intended
to ban certain weapons systems, what
Is a "weapon-delivery vehicle"? In ad-
dition, a major issue arose in the Intel-
ligence Committee as to certain Sovi-
ets efforts to walk away from obliga-
tions under the treaty in the area of
onsite inspection.
Had these issues not been clarified
prior to ratification, they could have
sown the seeds for highly contentious
compliance disputes with the Soviet
Union in the future. I am pleased,
therefore, that the administration re-
sponded in a positive fashion to the
concerns expressed by the Senate and
that the United States and the Soviet
Union were able to reach two agree-
ments in Geneva on May 12 resolving
these matters in a satisfactory
manner.
In the opinion of the sponsors of
this amendment, all that remains to
put this matter to rest is to ensure
that the May 12 agreements have the
same force and effect as the treaty
itself. Our category III understanding
will, if adopted by the Senate, accom-
plish this result.
Mr. President, in my remarks I will
focus on the future INF weapons
Issue. Senators COHEN and BOREN will
speak to the onsite inspection dispute.
I am sure that Senator WARNER will
speak on one or both of these, since he
Is the ranking member of the Armed
Services Committee and also a valued
member of the Intelligence Commit-
tee.
The May 12 United States-Soviet
agreement on future INF weapons in
effect adds a new provision to the
treaty; that is, a definition of the term
"weapon-delivery vehicle" as used in
the treaty. In light of all the confusion
within the administration on this
issue, and I assume also within the
Soviet Union, I do not think it would
be wise for the Senate to let this
matter rest as a side agreement that is
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S 6702 CONGRESSIONAL RECORD ? SENATE
not formally incorporated into the
treaty.
I know the Senator from North
Carolina is a part of this overall effort
and that he would like to see this as
part of the treaty, also. I believe the
Senator from North Carolina's second-
degree amendment is another matter,
but a similar matter, which will be in-
corporated if the Senate decides to
pass this amendment and if the
second-degree amendment is a part of
this amendment.
So we are really all aiming toward
putting into the treaty in a formal way
matters that have been agreed to be-
tween the two parties but which now
are side agreements.
I recognize that some might argue
that it is not necessary for the Senate
to make this side agreement an inte-
gral part of the treaty. However, the
same argument could have been made
with respect to the three other docu-
ments which the administration itself
chose to make an integral part of the
treaty, that is, the memorandum of
understanding (M01J3 on data, the
protocol on inspections, and the proto-
col on elimination. As stated in article
I of the treaty:
In accordance with the provisions of this
Treaty which includes the Memorandum of
Understanding and Protocols which form an
integral part thereof.
In short, even though the adminis-
tration could have argued that the
MOU and the two protocols were le-
gally binding and did not require any
additional action, the administration
correctly perceived that the docu-
ments were too important and too cen-
tral to the integrity and effectiveness
of the treaty not to be made a formal
part of the treaty. I believe the same
logic applies to the May 12 agreement
on future INF weapons, and the May
12 agreement on verification as well.
Had not these additional agreements
been reached, we would not have pro-
ceeded with the floor debate.
I would also note that in 1979 the
Senate Foreign Relations Committee
voted unanimously, 14 to 0, for a cate-
gory III understanding that would
have required President Carter to
have secured Soviet agreement that
the numerous agreed statements and
common understandings that were ne-
gotiated as part of SALT II were of
the same force and effect as the provi-
sions of the treaty. This condition was
supported by a number of Senators
who are still Members of this body, in-
cluding Senators PELL, LUGAR, HELMS,
BIDEN, GLENN, and SARBANES. It is also
interesting to note, Mr. President, that
the Carter administration took the po-
sition that it was unnecessary for the
Senate to take any action with regard
to these associated agreements?that
the Senate need only ratify the treaty
itself.
Mr. President, I do not think we
should be surprised that this adminis-
tration takes the position that no fur-
ther action by the Senate is required.
The executive branch never wants fur-
ther action by the Senate on matters
it has negotiated if it can help it. It is
Instructive to remember that the
Nixon administration took the posi-
tion in 1972 that submission of the
SALT I interim agreement on offen-
sive weapons to the Congress for its
approval was not strictly required. But
we in the Senate must decide what we
think is required consistent with our
responsibilities under the Constitution
for treatymaking.
BACKGROUND
Mr. President, we have come a long
way since the future weapons issue
first surfaced in the course of Armed
Services Committee hearings on the
treaty in January. The journey we
have travelled to reach this point has
not been quick or easy. We have spent
countless hours in hearings and meet-
ings discussing this question. It took
several weeks for the administration
to decide what its position was on the
issue. Twice, the administration had to
go back to the Soviets to seek a clarifi-
cation of their position.
Although this process has been nei-
ther easy or quick, the treaty is much
the better for the Senate's having
raised this concern. The procedure we
have followed to ensure that the
treaty obligations in this area were
clearly understood has, in my opinion
underscored the soundness of the con-
stitutional responsibilities afforded
the Senate by the Founding Fathers.
The Senate was meant to act as a
check and a balance against the possi-
bility of excessive haste on the part of
the executive in concluding treaties. In
the case of the INF Treaty, the Senate
has performed that funglion with dis-
tinction.
TREATY DEFINITIONS
Mr. President, to understand this
Issue one must begin with the relevant
provisions in the treaty text. By way
of background, I would explain that
the INF Treaty establishes a perma-
nent ban on all United States and
Soviet intermediate-range missiles and
shorter-range missiles. Both of these
terms are defined in the treaty. Article
II, paragraph 5 defines an "intermedi-
ate-range missile" as a GLBM or a
GLCM having a range capability in
excess of 1,000 kilometers but not in
excess of 5,500 kilometers. Article II,
paragraph 6 defines a shorter range
missile as a GLBM or a GLCM having
a range capability equal to or greater
than 500 kilometers but not in excess
of 1,000 kilometers.
GLBM and GLCM are also terms de-
fined in the treaty. Article II, para-
graph 1 states: "The term 'ground-
launched ballistic missile EGLBMF
means a ground-launched ballistic mis-
sile that is a weapon-delivery vehicle."
Acticle II, paragraph 2 states: "The
term 'ground-launched cruise missile
[GLCM]' means a ground-launched
cruise missile that is a weapon-delivery
vehicle." The treaty provides defini-
tions of the terms "ballistic missile"
and "cruise missile';" however, it does
May 26, 1988 ,
not contain a definition of the term
"weapon-delivery vehicle."
I believe that the Senator from
North Carolina joins with us in believ-
ing that this is the correct way to pro- .
ceed. So we have, I believe, a general
understanding between the Intelli-
gence Committee chairman and rank-
ing member?Senators BOREN and
COHEN; the Armed Services chairman
and ranking member, myself and Sen-
ator WARNER?and the ranking
member of the Foreign Relations
Committee, Senator HELMS. I also be-
lieve that Senator PELL, the chairman
of the Foreign Relations Committee,
agrees with this approach.
Let me say, trying to abbreviate my
remarks this morning to expedite the
matter, we have come a long way since
the future weapons issue first surfaced
In the course of the Armed Services
Committee hearings on the treaty in
January. The journey We have trav-
eled to reach this point has not been
quick or easy. We have spent countless
hours in hearings and meetings dis-
cussing this question. It took several
weeks for the administration to decide
what its position was on this issue.
Twice the administration had to go
back to the Soviets to seek a clarifica-
tion of their position.
Although this process has been nei-
ther easy nor quick, the treaty is much
the better for the Senate's having
raised this concern. The procedure we
have followed to ensure that the
treaty obligations in this area were
clearly understood has, in my opinion,
underscored the soundness of the con-
stitutional responsibilities afforded
the Senate by the Founding Fathers.
The Senate was meant to act as a
check and a balance against the possi-
bility of excessive haste on the part of
the executive in concluding treaties. In
the case of the INF Treaty, I believe
the Senate has performed that func-
tion with distinction.
APPLICABILITY OF THE DEFINITIONS TO MISSILE
CATEGORIES
To determine what is and is not cov-
ered under the INF Treaty, the agree-
ment's definitions of "intermediate-
range missile," "shorter-range mis-
sile," "GLBM," and "GLCM" must be
examined in relation to four general
categories of ground-launched missiles
of INF ranges:
A. Nuclear-armed missiles;
B. Conventionally-armed missiles (i.e.,
missiles armed with traditional types of
nonnuclear warheads, such as warheads
filled with chemical explosives or chemical
warfare agents);
C. Futuristic or exotic types of nonnuclear
missile weapons (e.g., missiles armed with a
laser kill device or a microwave pulse gener-
ator or a missile that is designed to collide
with its target (kinetic kill); and
D. Unarmed drones and RPVs, such as
missiles for surveillance, reconnaissance
communications, target designation, or an
other non-weapon-delivery purpose.
These are the four categories we
talking about. The latter catego
that is unarmed drones, RPV's missil
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May 26, 1988 CONGRESSIONAL RECORD -- SENATE
for surveillance, reconnaissance, com-
munications, target designation or any
other nonweapon delivery purpose, are
not covered by this treaty. I think that
is going to be a distinction that is ex-
tremely important. Not in 10 or 15
years but in the next few years and we
are going to have to make sure that
the Senate understands this and
agrees to this overall approach.
CATEGORY A: NUCLEAR-ARMED MISSILES
There is no question that current
and future "intermediate- and shorter-
range missiles" armed with nuclear
warheads are banned by the INF
Treaty and that both parties consider
themselves bound by this prohibition.
From the outset of the negotiations,
both sides agreed that the treaty
would apply to nuclear-armed GLCM's
and GLBM's of INF range.
The second category, which I have
labeled category B, conventionally
armed missiles.
We debated that question yesterday,
the Senator from South Carolina felt
strongly that these conventionally
armed missiles should not be banned
but they are banned.' There is no ques-
tion about that. We reiterated that
yesterday by the vote on the floor of
the Senate where we turned down the
proposal to allow conventionally
armed missiles. There is just no ques-
tion that current and future interme-
diate and short-range missiles armed
with nonnuclear or conventional war-
heads?for example warheads filled
with high-energy explosives or chemi-
cal warfare agents, are banned by the
treaty and that both sides consider
themselves to be so bound.
In this regard, the acronym "INF"?
which stands for intermediate-range
nuclear forces?is somewhat mislead-
ing, since the treaty eliminates con-
ventional as well as nuclear GLCM's
and GLBM's of INF range. In fact, the
INF Treaty could be described as the
first conventional arms control agree-
ment between the superpowers in the
post-war era.
Unlike category A, the United States
did not agree to the Soviet position
that the treaty would apply to conven-
tionally armed GLCM's and GLBM's
of INF range until President Reagan
decided late in the negotiations (Sep-
tember 1987). The administration's ra-
tionale for this decision is discussed in
the Armed Services Committee report
on the treaty.
CATEGORY C: FUTURISTIC MISSILE WEAPONS
In contrast to the ultimate U.S. deci-
sion to agree to ban conventionally
armed GLCM's and GLBM's of INF
ranges?which followed a protracted
and hard-fought debate within the ad-
ministration?the implications of this
decision for potential types of futuris-
tic or exotic non-nuclear-armed
LCM's and GLBM's of INF range ap-
ears to have received little, if any,
igh-level policy review prior to the
enate hearings on the treaty.
In response to a letter from Senator
AYLE, former Secretary Weinberger
d former ACDA Director Adelman
recently wrote letters denying that'
there was any understanding within
the administration that the treaty
would apply to futuristic systems (at-
tachments 2 and 3). This contention
was disputed by administration offi-
cials during an April 14 Armed Serv-
ices Committee hearing.
For example, General Herres, Vice
Chairman of the Joint Chiefs of Staff,
testified:
I would just have to say, with all due re-
spect, Mr. Weinberger has to be mistaken.
You know, if weapons based on future tech-
nologies had been meant for exclusion * *
there would have to be some record or some
documentation which defines the scope of
that exclusion. I do not know of one shred
of documentation anywhere. I have never
heard any discussion in all of these delibera-
tions that at any time ever suggested that
there was any intent of defining the scope
of some exclusion that would facilitate the
use of future technologies for weapons
using these platforms.
At this hearing, Ambassador Wood-
worth, the deputy chief INF negotia-
tor, conceded that "at the time of that
decision, which is what he (Mr. Wein-
berger) was addressing, we had not ex-
plicitly discussed futures, and I think
that is what he was reflecting." Am-
ba.ssador Woodworth went on to say,
however, that "we have looked at this
issue in OSD, as we have in the entire
administration, and we have reached a
conclusion about what we think the
logic of the record and the treaty
means, and it is difficult to reach any
other conclusion." In this regard, Am-
bassador Woodworth testified, "it ap-
pears he (Mr. Weinberger) does not
agree with the position we have
taken."
Whatever the degree of understand-
ing at the time the decision was made
to ban conventionally armed GLCM's,
the question which arose during our
hearings was what is the effect of the
treaty which the Senate is now being
asked to approve. As Ambassador Glit-
man testified on April 14 with regard
to the Weinberger and Adelman let-
ters:
? ? ? it is not a question a who is telling
the truth. It seems to me it is a question of
what does the Treaty do and what does it
not do.
The question of whether potential
types of nonnuclear GLCM's and
GLBM's of INF ranges that would
carry or be employed as futuristic or
exotic weapons are covered under the
treaty bears directly on the definition
of "weapon-delivery vehicle." The
treaty clearly specifies that any cruise
or ballistic missile of INF range that is
ground-launched is banned if it is a
"weapon-delivery vehicle." By implica-
tion, any cruise or ballistic missile of
INF range that is ground-launched
and is not a "weapon-delivery vehicle"
is permitted. As will be noted, this dif-
ferentiation also relates directly to the
determination of which types of mis-
siles qualify as permitted category D
missiles; that is, unarmed drones or
RPV's used for "non-weapon-deliver"
S 6703
purposes, such as surveillance or re-
connaissance.
Although the treaty does not con-
tain a definition of "weapon-delivery
vehicle," the article-by-article analysis
of the treaty submitted by Secretary
Shultz stated that this term meant
"those types of (GLCM's and GLBM's)
that have been * * ? flight-tested or
deployed with any type of warhead
device or simulation thereof." This
suggested that any GLCM or GLBM
which did not carry a warhead was ex-,.
eluded. Put differently, this suggested
that GLCM's or GLBM's of INF range
which attacked their targets through
more exotic means (such as a laser, a
microwave pulse generator or direct
impact (kinetic kill)) were not covered.
During hearings on March 18 and
24, the administration testified to the
Armed Services Committee that it
could not say what its position was on
this key definitional issue or in re-
sponse to specific questions about
which types of future or "exotic" tech-
nology systems were banned by the
treaty. Finally, Ambassador Glitman
appeared before the Foreign Relations
Committee on March 30 and an-
nounced that the administration had
determined that the term "weapon-de-
-livery vehicle" meant "any INF ballis-
tic or cruise missile system that is
tested or deployed to carry a weapon?
that is, any mechanism or device
which when directed against a target
is designed to damage or destroy it."
Since this definition incorporated
means of damage or destruction other
than warheads, it constituted a more
inclusive definition than that con-
tained in the article-by-article analy-
sis.
CATEGORY D: UNARMED DRONES AND RPV'S
Any cruise or ballistic missile of INF
range that is ground-launched and
that is not covered by the administra-
tion's definition is necessarily encom-
passed under category D. In other
Words, if a cruise or ballistic missile of
INF range that is ground-launched
does not carry a "mechanism or device
which when directed against a target
is designed to damage or destroy it,"
then it is permitted under the treaty.
After the administration determined
its position on the definitional issue,
executive branch witnesses discussed
the implications of the definition with
reference to specific types of future
weapons which would and would not
be covered by this definition. Based on
this testimony and additional consul-
tations with the administration, it is
the understanding and intent of the
sponsors of this amendment what the
following represents an illustrative list
of potential RPV/drone mission areas
which the United States regards as
"non-weapon-delivery" missions for
purposes of treaty interpretation:
I emphasize this list is an illustra-
tion. It is not intended to envision
every possibility of excluded weapons,
but it is illustrative of those missions
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S 6704 CONGRESSIONAL RECORD ? SENATE
that we believe are not weapon deliv-
ery missions:
Surveillance, reconnaissance, target
simulation, communications relay, sig-
nals intelligence, such as electronics
eavesdropping; decoying, psychological
warfare activities, such as leaflet drop-
ping, weather data gathering, bomb
damage assessment, target designa-
tion, electronic countermeasures
[ECM] and other electronic warfare
activities, such as radar jamming and
chaff dispensing.
Mr. President, those are items which
we feel strongly about, after going
through this in detail and developing
with the administration and the ad-
ministration with the Soviet Union
this definition which had not been
covered in the original treaty as sub-
mitted.
We feel that these items are ex-
cluded, meaning the United States or
the Soviet Union will be able to devel-
op these type of devices without
breaching 'the treaty that we have
before us.
NEGOTIATING HISTORY
Mr. President, the administration
conceded that at no point in the nego-
tiations did the two parties specifically
discuss INF missiles using future tech-
nologies and that the parties never
specifically addressed the meaning of
the term "weapons-delivery vehicle"
or its application to the four catego-
ries which I have outlined. The admin-
istration contended that this omission
was not an oversight per se, but rather
reflected a general policy of the two
sides that it would not be necessary to
negotiate the meaning of "ordinary,
commonly understood" words.
Nonetheless, the administration did
point to several U.S. memorandums of
conversations Imemcons] with the
Soviet side during the negOtiations
which it contends contain inferences
that the Soviet Union viewed the
scope of the treaty broadly, with no
exemption for any type of future con-
ventionally armed GLCM's or
GLBM's. This view was challenged by
some members of the Armed Services
Committee during the hearings, pri-
marily because the memcons related
to negotiations on whether conven-
tionally armed GLCM's would be pro-
hibited under the treaty. These mem-
cons have been provided to the Senate?
but remain classified.
Finally, the administration cited the
Vienna Convention on the Law of
Treaties as supportive of its position.
Article 31 of that agreement provides
that treaties "shall be interpreted in
good faith in accordance with the ordi-
nary meaning to be given to the terms
of the treaty in their context."
Based on these arguments, the ad-
ministration asserted that no clarifica-
tion of the Soviet position on this
issue was technically required since
the administration believes that a
common understanding has already
been established. As stated in Secre-
tary Shultz' letter to Senator DOLE of
April 20:
The Administration has concluded that
the INF negotiating record, viewed in con-
junction with the Treaty text and with cus-
tomary international law and the Vienna
Convention on the Law of Treaties,,demOn-
strate that the United States and the Soviet
Union share a common understanding that
all U.S. or Soviet ground-launched missiles
with ranges between 500-5500 kilometers,
both present and future, should be subject
to the provisions of the INF Treaty.
According to Secretary Shultz, it is
also the "considered judgment" of the
administration that "the parties un-
derstand the term 'weapon-delivery ve-
hicle' to mean any INF ballistic or
cruise missile system that is tested or
deployed to carry a weapon?that is,
any mechanism or device which when
directed against a target is designed to
damage or destroy it:" that is, the
same definition which Ambassador
Glitman presented on March 30.
RECENT DIPLOMATIC INITIATIVES
Although the administration had
stated that no clarification was techni-
cally required, Secretary Shultz elect-
ed to raise the future weapons ques-
tion with Mr. Shevardnadze on the oc-
casion of their April 14 meeting in
Geneva to sign the U.N. convention on
Afghanistan. On April 15, the Soviet
Ambassador in Washington delivered a
letter to the Secretary from the For-
eign Minister which commented on
their discussion in Geneva.
Unfortunately, the letter raised
more questions about the Soviet posi-
tion than it answered. Compounding
the problem was the fact that the
Senate was provided two versions of
the letter which differ in key respects.
The first was an "unofficial" English-
language translation of the original
Russian text prepared by the Soviet
Government that was sent by Ambas-
sador Kampelman to Senator PELL on
April 18. The second was an "official"
State Department translation sent by
Secretary Shultz to Senator DOLE on
April 20.
There were several problems with
the April 15 Shevardnadze letter. For
example, the first translation of the
letter raised a question as to whether
the Soviet Union agrees that un-
armed?that is, category D?missiles
are exempted from the treaty. It is
possible to read the phrase in the first
translation of the letter "intermedi-
ate-range and shorter-range missiles,
however equipped" as including sur-
veillance drones or RPV's and other
non-weapons-equipped missiles. In the
second, official translation, the phrase
"however equipped" was changed to
read "however armed." The State De-
partment explained that the Russian
word in question could be translated
both as "armed" and "equipped" but
that during the INF negotiations it
was standard practice to translate it as
"armed."
Second, in both translations, the
letter referred only to missiles which
are equipped with "warheads." This is
significant since, as previously noted,
this issue first arose, in part, because
the article-by-article analysis appeared
May 26, 1988
to indicate that only those INF mis-
siles equipped with "warheads" were
covered.
Furthermore, the letter failed to
provide an explicit assurance that the
Soviet Union agrees with the adminis-
tration's contention that the parties
understand the term "weapon-delivery
vehicle" to mean "any INF missile
which carries a weapon; that is, any
mechanism or device which, when di-
rected against a target, is designed to
damage or destroy it."
Recognizing that many Senators
were dissatisfied with the April 15
Shevardnadze letter, the administra-
tion initiated an exchange of diplo-
matic notes with the Soviet Union
during the recent ministerial meetings
in Geneva. These letters, dated May 12
and signed by Ambassador Kampel-
man and Ambassador Karpov, respec-
tively, confirm the parties' under-
standing as to the definition of
"weapon-delivery vehicle" and the ap-
plicability of the treaty to future INF
weapons.
As stated in the May 12 diplomatic
note of the Soviet Union to the United
States, the Soviet Union confirmed
that it "is in full accord with the text
and contents of the note of the Gov-
ernment of the United States of Amer-
ica," including the statement in the
United States note that the definition
of "weapon-delivery vehicle" is "any
ground-launched ballistic or cruise
missile in the 500-kilometer to 5,500-
kilometer range that has been flight-
tested or- deployed to carry or be used
as a weapon?that is, any warhead,
mechanism or device, which, when di-
rected against any target, is designed
to damage or destroy it." This final
version of the definition incorporated
several modifications suggested by the
- Armed Services Committee but re-
mains fully consistent with the text of
the definition presented by Ambassa-
dor Glitman on March 30.
Mr. President, I ask unanimous con-
sent that the United States and Soviet
diplomatic notes of May 12 and the
May 12 agreement on onsite inspection
issues be inserted in the RECORD at the
conclusion of my remarks.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
(See exhibit 1.)
Mr. NUNN. Mr. President, I believe,
in conclusion, that these agreements
with the Soviet Union must be incor-
porated into the treaty and given the
same weight and stature as the exist-
ing MOU on data and the protocols on
elimination and inspection.
Mr. President, the Category III un-
derstanding to the resolution of ratifi-
cation which we are proposing re-
quires that, as a condition for entering
the treaty into force, the President
must obtain a formal and binding as
surance from the Soviet Union tha
the May 12 exchange of notes and th
verification agreement have the sa
force and effect as the treaty. Such
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May 26, 1988
CONGRESSIONAL RECORD ? SENATE S 6705
assurance would have to be secured
through a procedure that would leave
no doubt as to the explicit agreement
of the Soviet Union to the Senate un-
derstanding.
The protocol of exchange of instru-
ments of ratification is the normal ve-
hicle for recording such clarifications.
It is this document which both parties
sign at the time they exchange their
respective instruments of ratification
which specifies the effect each party
gives to any conditions contained in
the instrument of ratification of the
other party.
I certainly do not see this as a
"killer" amendment or as a require-
ment which will delay the treaty in
any respect. In a May 13 letter to Sen-
ators BOREN, WARNER, COHEN, and me,
General Powell, the National Security
Adviser, stated that the May 12 let-
ters:
Constitute a mutual and binding commit-
ment on both the United States and the
Soviet Union which has the same force and
effect under international law as the provi-
sions of the treaty itself.
So there is no disagreement as to the
substance of this condition between
the White House and the sponsors of
the amendment.
Furthermore, the Soviet Union has
already indicated that it shares a
common understanding with the
United States on these issues, thus
there should be no problem with
asking the Soviet Government to con-
firm that the two parties' agreement
on these issues have the same force
and effect as the provisions of the
treaty. Such a confirmation would
only require one additional sentence in
the protocol of exchange and could be
accomplished in a matter of minutes.
EXHIBIT 1 ?
NOTE OF THE Govmom= OF THE UNITED
STATES OF AMERICA TO THE GOVERNMENT OF
THE UNION OF SOVIET SOCIALIST REPUBLICS
In light of the discussions between the
Secretary of State of the United States of
America and the Foreign Minister of the
Union of Soviet Socialist Republics in
Geneva and Moscow on April 14 and April
21-22, 1988, and the Foreign Minister's'
letter to the Secretary of State, dated April
15, 1988, the Government of the United
States of America wished to record in an
agreement concluded by exchange of notes
the common understanding reached be-
tween the two Governments as to the appli-
cation of the Treaty Between the United
States of America and the Union of Soviet
Socialist Republics on the Elimination of
Their Intermediate-range and Shorter-
range Missiles (hereinafter referred to as
"the Treaty"), signed at Washington on De-
cember 8, 1987, to intermediate-range and
shorter-range missiles flight-tested or de-
ployed to carry weapons based on either
current of future technologies and as to the
related question of the definition of the
term "weapon-delivery vehicle" as used in
the Treaty.
It is the position of the Government of
the United States of America that the Par-
ties share a common understanding that all
eir intermediate-range and shorter-range
issues as defined by the Treaty, both at
resent and in the future, are subject to the
rovisions of the Treaty.
In this connection, it is also the position
of the Government of the United States of
America that the Parties share a common
understanding that the term "weapon-deliv-
ery vehicle" in the Treaty means any
ground-launched ballistic or cruise missile
in the 500 kilometer to 5500 kilometer range
that has been flight-tested or deployed to
carry or be used as a weapon?that is, any
warhead, mechanism or device, which, when
directed against any target, is designed to
damage or destroy it. Therefore, the Treaty
requires elimination and bans production
and flight-testing of all such missiles tested
or deployed to carry or be used as weapons
based on either current or future technol-
ogies, with the exception of missiles men-
tioned in paragraph 3 of Article VII of the
Treaty. It is also the position of the Govern-
ment of the United States of America that
the Parties share a common understanding
that the Treaty does not cover non-weapon-
delivery vehicles.
It is the understanding of the Govern-
ment of the United States of America that
the above reflects the common view of the
two Governments on these matters. If so,
the Government of the United States of
America proposes that this note and the
Soviet reply note confirming that the Gov-
ernment of the Union of Soviet Socialist Re-
publics shares the understanding of the
Government of the United States of Amer-
ica, as set forth above, shall constitute an
agreement between the Government of the
United States of America and the Govern-
ment of the Union of Soviet Socialist Re-
publics.
NOTE OF THE GOVERNMENT OF THE UNION OF
SOVIET SOCIALIST REPUBLICS TO THE Gov-
ERNMENT OF THE UNITED STATES OF AMER-
ICA.
The Government of the Union of Soviet
Socialist Republics acknowledges receipt of
the note of the Government of the United
States of America of May 12, 1988, as fol-
lows:
"In light of the discussions between the
Secretary of State of the United States of
America and the Foreign Minister of the
Union of Soviet Socialist Republics in
Geneva and Moscow on April 14 and April
21-22, 1988, and the Foreign Minister's
letter to the Secretary of State, dated April
15, 1988, the Government of the United
States of America wished to record in an-
agreement concluded by exchange of notes
the common rinderstanding reached be-
tween the two Governments as to the appli-
cation of the Treaty Between the United
States of America and the Union of Soviet ?
Socialist Republics on the Elimination of
Their Intermediate-range and Shorter-
range Missiles (hereinafter referred to as
the Treaty'), signed at Washington on De-
cember 8, 198'7, to intermediate-range and
shorter-range missiles flight-tested or de-
ployed to carry weapons based on either
current or future technologies and as to the
related question of the definition of the
term 'weapon-delivery vehicle' as used in
the Treaty.
"It is the position of the Government of
the United States of America that the Par-
ties share a common understanding that all
their intermediate-range and shorter-range
missiles as defined by the Treaty, both at
present and in the future, are subject to the
provisions of the Treaty.
"In this connection, it is also the position
of the Government of the United States of
America that the Parties share a common
understanding that the term 'weapon-deliv-
ery vehicle' in the Treaty means any
ground-launched ballistic or cruise missile
In the 500 kilometer to 5500 kilometer range
that has been flight-tested or deployed to
carry or be used as a weapon?that is, any
warhead, mechanism or device, which, when
directed against any target, is designed to
damage or destroy it. Therefore, the Treaty
requires elimination and bans production
and flight-testing of all such missiles tested
or deployed to carry or be used as weapons
based on either current or future technol-
ogies, with the exception of missiles men-
tioned in paragraph 3 of Article VII of the
Treaty. It is also the position of the Govern-
ment of the United States of America that
the Parties share a common understanding
that the Treaty does not cover non-weapon-
delivery vehicles.
"It is the understanding of the Govern-
ment of the United States of America that
the above reflects the common view of the
two Governments on these matters. If so,
the Government of the United States of
America proposes that this note and the
Soviet reply note confirming that the Gov-
ernment of the Union of Soviet Socialist Re-
publics shares the understanding of the
Government of the United States of Amer-
ica, as set forth above, shall constitute an
agreement between the Government of the
United States of America and the Govern-
ment of the Union of Soviet Socialist Re-
publics."
The Government of the Union of Soviet
Socialist Republics states that it is in full
accord with the text and contents of the
note of the Government of the United
States of America as quoted above and fully
shares the understanding of the Govern-
ment of the United States of America set
forth in the above note.
The Government of the Union of Soviet
Socialist Republics agrees that the note of
the Government of the United States of
, America of May 12, 1988, and this note in
reply thereto, constitute an agreement be-
tween the Government of the Union of
Soviet Socialist Republics and the Govern-
ment of the United States of America that
the Treaty Between the United States of
America and the Union of Soviet Socialist
Republics on the Elimination of Their In-
termediate-range and Shorter-range Mis-
ties is applicable to intermediate-range and
shorter-range missiles flight-tested or de-
ployed to carry weapons based on either
current or future technologies, and also re-
garding the related question of the defini-
tion of the term "weapon-delivery vehicle"
as used in the Treaty.
GENEVA, May 12, 1988.
Representatives of the United States of
America and the Union of Soviet Socialist
Republics discussed the following issues re-
lated to the Treaty Between the United
States of America and the Union of Soviet
Socialist Republics on the Elimination of
Their Intermediate-Range and Shorter-
Range Missiles, signed in Washington on 8
December, 1987, during the meeting be-
tween Secretary Shultz and Foreign Minis-
ter Shevardnadze in Geneva on 11-12 May
1988. As a result of these discussions, the
Parties agreed on the points that follow.
1. In accordance with paragraph 7 of Sec-
tion VII of the Inspection Protocol, during
baseline, close-out and short-notice inspec-
tions, the Parties will be Inspecting the
entire inspection site, including the interior
of structures, containers or vehicles, or in-
cluding covered objects, capable of contain-
ing: for the United States?the second stage
of the Pershing II, and the BGM-109G
cruise missile; for the USSR?the first stage
of the SS-12 missile, the stage of the SS-23
missile, the SSC-X-4 cruise missile and the
SS-4 launch stand.
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2. Regarding the second stages of United
States GLBMs, the aggregate numbers of
these stages are listed in the Memorandum
of Understanding and will be updated in ac-
cordance with Article IX of the Treaty no
later than 30 days after entry into force of
the Treaty and at six-month intervals there-
after. Except in the case of close-out inspec-
tions and inspections of formerly declared
facilities, the United States in-country
escort is obliged to provide the Soviet in-
spection team leader with the number of
such second stages at the inspection site as
well as a diagram of the inspection site indi-
cating the location of those stages. Finally,
as set forth in the Elimination Protocol,
Soviet inspectors will observe the elimina;
tion of all the stages of United States
GLBMs.
3. The entire area of an inspection site, in-
cluding all buildings, within the outer
boundaries depicted on the site diagrams
are subject to inspection. In addition, any-
thing depicted outside these outer bound-
aries on the site diagrams is subject to in-
spection. Any technical corrections to the
site diagrams appended to the Memoran-
dum of Understanding will be made via the
corrigendum exchange of notes prior to
entry into force of the Treaty. Such correc-
tions will not involve the exclusion of the
buildings, structures or roads within or de-
picted outside the outer boundaries depicted
on the site diagrams currently appended to
the Memorandum of Understanding.
4. The Soviet side assured the United
States side that, during the period of contin-
uous monitoring a facilities under the
Treaty, no shipment shall exit a continuous
monitoring facility on the territory of the
USSR whose dimensions are equal to or
greater than the dimensions of the SS-20
missile without its front section but less
than the dimensions of an SS-20 launch
canister, as those dimensions are listed in
the Memorandum of Understanding.. For
the purposes of this assurance, the length
of the SS-20 missile without its front sec-
tion will be considered to be 14.00 meters. In
the context of this assurance, the United
States side will not be inspecting any ship-
ment whose dimensions are less than those
of an SS-20 launch canister, as listed in the
Memorandum of Understanding.
5. Inspection teams may bring to the in-
spection site the equipment provided for in
the Inspection Protocol. Use of such equip-
ment will be implemented in accordance
with the procedures set forth in that Proto-
col. For example, if the inspecting Party be-
lieves that an ambiguity has not been re-
moved, upon request the inspected Party
shall take a photograph of the object or
building about which a question remains.
6. During baseline inspections, the Parties
will have the opportunity, on a one-time
basis, to verify the technical characteristics
listed in Section VI of the Memorandum of
Understanding, including the weights and
dimensions of SS-20 stages, at an elimina-
tion facility. Inspectors will select at
random one of each type of item to weigh
and measure from a sample presented by
the inspected Party at a site designated by
the inspected Party. To ensure that the
items selected are indeed representative, the
sample presented by the inspected Party
must contain an adequate number of each
Item (i.e., at least 8-12, except in the case of
the United States Pershing IA launcher,
only one of which exists).
7. Immediately prior to the initiation of
elimination procedures, an inspector shall
confirm and record the type and number of
items of missile systems which are to be
eliminated. If the inspecting Party deems it
necessary, this shall include a visual inspec-
tion of the contents of launch canisters.
This visual inspection can include looking
into the launch canister once it is opened at
both ends. It can also include use of the
equipment and procedures that will be used
eight times per year at Votkinsk and Magna
to measure missile stages inside launch can-
isters (i.e., an optical or mechanical measur-
ing device). If it should turn out, in particu-
lar situations, that the inspector is unable
to confirm the missile type using the above
techniques, the inspected Party is obligated
to remove the inspector's doubts so that the
inspector is satisfied as to the contents of
the launch canister.
8. The length of the SS-23 missile stage
will be changed, in a corrigendum to the
Memorandum of understanding, to 4.58
meters. The length of the SS-12 first stage
will continue to be listed as 4.38 meters,
which includes an interstage structure.
9. The sides will exchange additional pho-
tographs no later than May 15, 1988. For
the United States side, these photographs
will be of the Pershing IA missile and Per-
shing II missile with their front sections at-
tached and including a scale. For the Soviet
side, these photographs will be of the SS-23,
SS-12, and SS-4 with their front sections at-
tached, and of the front section of the SS-
20.
10. In providing notifications of transit
points in accordance with paragraph 5(f )(iv)
of Article IX of the Treaty, the Parties will
specify such intermediate locations by pro-
viding the place-name and its center coordi-
nates in minutes.
11. The United States side has informed
the Soviet side that Davis Monthan Air
Force Base, Arizona will serve as the elimi-
nation facility for the United States BGM-
109G cruise missile. In order to address
Soviet concerns on a related matter, the
United States will formally inform the
Soviet side before entry into force of the
Treaty, of an elimination facility for each of
Its Treaty-limited items.
These points reflect the understandings of
the two Parties regarding their obligations
under the Treaty.
MAYNARD W. GUTMAN,
Ambassador, United States Chief Negoti-
ator on Intermediate-Range Nuclear
Forces.
N. Cmgavov,
Colonel General, Chief of Directorate
General Staff of the Soviet Armed
Forces.
Mr. WARNER. Mr. President, this
amendment, in the judgment of the
Senator from Virginia, represents
some of the most constructive work
done by the Senate on this treaty. And
It. was done in what I call a complete
spirit of consultation with the Presi-
dent, the Secretary of State, the Na-
tional Security Adviser, 'and others
who have from time to time met with
us as a group and defined the frame-
work of the area. We believe this was
necessary and had to be corrected as a
consequence of our hearings. There
were certain informal exchanges of
letters which led to the eventual ex-
change of formal diplomatic notes be-
tween the United States and the
Soviet Union. Those notes, Mr. Presi-
dent, are incorporated by reference
under this amendment, and become an
integral part of the treaty.
The chairman of the Armed Services
Committee, Mr. NurrN, addressed in
some detail as to how the issue of the
futuristic systems arose in the context
May 26, 1988
of the hearings of the Senate Armed
Services Committee. On Septeinber 17,
1987, the President made the decision
to include in a general category the
conventional ballistic and cruise mis-
siles under the terms of the treaty.
The record, in the judgment of the
Senate, did not fully cover the types of
weapons in the conventional area.
That oversight led to the exchange of
notes which stand before us today
making it very clear the categories of
weapons that would be included under
the treaty.
We want to also make clear, and the
Senator from Georgia has touched on
this, and I think the distinguished
Senator from Indiana will soon ad-
dress this subject, that the INF mis-
siles with an electronic warfare pay-
load which do not damage or destroy a
target are permitted by this treaty.
That is a very important category of
weaponry that in the future I am sure
this Nation may or will develop.
We also learned from the chairman
in his statement that certain weapons
systems which incorporate lasers,
microwaves, directed energy, and ki-
netic kill systems are included in this
category of prohibited weapons under
the treaty. These are typical technol-
ogies that when developed to damage
or destroy a target are considered a
weapon delivery system. Finally, I
would like to inform the Senate that
anyone interested in reading the histo-
ry of the INF future weapons issue
should refer to a report written by
Senator NuNN and myself. This details
how this issue surfaced, debated, and
was subsequently resolved. The report
is an unclassified addendum that we
submitted to this SSCI report on
future INF weapons.
I ask unanimous consent that the
report be printed in the RECORD.
There being no objection, the report
was ordered to be printed in the
RECORD, RS follows:
ADDENDUM TO SSCI REPORT ON FUTURE INF
WEAPONS SUBMITTED BY SENATORS NTJNN
AND WARNER
BACKGROUND OF THE FUTURE INF WEAPONS
ISSUE
During the Armed Services Committee
hearings on the INF Treaty, a critical issue
arose as to precisely which types of ground-
launched missiles of INF range are covered
under the Treaty. Unless clarified prior to
ratification, this ambiguity could sow the
seeds for highly contentious compliance dis-
putes with the Soviet Union in the future.
At the heart of this issue lies a fundamental
question: in a Treaty which is intended to
ban certain weapon systems, what is a
"weapon-delivery vehicle"?
TREATY DEFINITIONS
The INF Treaty establishes a permanent
ban on all U.S. and Soviet "intermediate-
range missiles" and ? "shorter-range mis-
siles." Both of these terms are defined in
the Treaty. Article II, Paragraph 5 defines
an "intermediate-range missile" as "a
GLBM or a GLCM having a range capabil-
ity in excess of 1000 kilometers but not i
excess of 5500 kilometers." Article II, Par
graph 6 defines a "shorter-range missile"
"a GLBM or a GLCM having a range cap
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CONGRESSIONAL RECORD ? SENATE S 6707
bility equal to or greater than 500 kilome-
ters but not in excess of 1000 kilometers."
GLBM and GLCM are also terms defined
in the Treaty. Article II, Paragraph 1 states:
"The term 'ground-launched ballistic missile
(GLBM). means a ground-launched ballistic
missile that is a weapon-delivery vehicle."
Article II, Paragraph 2 states: "The term
'ground-launched cruise missile (GLCM)'
means a ground-launched cruise missile that
is a weapon-delivery vehicle." The Treaty
provides definitions of the terms "ballistic
missile" and "cruise missile:" however, it
does not contain a definition of the term
"weapon-delivery vehicle."
In point of fact, the term "weapon-deliv-
ery vehicle" is not original to the INF
Treaty. Rather, this term appears to have
been carried over from the SALT II Treaty,
where it was used in a definition of cruise
missile. Article II, Paragraph 8 of SALT II
defines cruise missiles as "unmanned, self-
propelled, guided weapon-delivery vehicles
which sustain flight through the use of
aerodynamic lift over most of their flight
path . ." (emphasis added.) The INF
Treaty defines a cruise missile as an "un-
manned, self-propelled vehicle that sustains
flight through the use of aerodynamic lift
over most of its flight path" and defines a
GLCM as a "ground-launched cruise mis-
siles that is a weapon-delivery vehicle."
Although the SALT II Treaty did not con-
tain a definition of "weapon-delivery vehi-
cle," it does include a definition of what is
not a "weapon-delivery vehicle." The Third
Common Understanding to Article II, Para-
graph 8 reads:
Unmanned, self-propelled, guided vehicles
which sustain flight through the use of
aerodynamic lift over most of their flight
path and are not weapon-delivery vehicles,
that is unarmed, pilotless, guided vehicles,
shall not be considered to be cruise missiles
if such vehicles are distinguishable from
cruise missiles on the basis of externally ob-
servable design features. (Emphasis added.)
A review of Senate hearings in 1979 on the
SALT II Treaty reveals no instance in which
Carter Administration officials addressed
the meaning of the terms "weapon-delivery
vehicle" and "unarmed." However, discus-
sions with former SALT II negotiators indi-
cate that in late December 1978,-the Soviet
Union unexpectedly claimed that all types
of remotely-piloted vehicles (RPVs), includ-
ed unarmed RPVs, would be covered under
the SALT II Treaty. The RPV issue was suc-
cessfully resolved during negotiations in
January and February of 1979, with the
Soviet Union agreeing that "unarmed, pilot-
less, guided vehicles" would- be excluded
from the agreement provided they were
equipped with so-called "externally observ-
able differences (E,ODs)."
During this period, the two-SALT II dele-
gations apparently made some references to
specific RPV mission areas which would be
exempt, including surveillance and commu-
nications. At the recommendation of the
Armed Services Committee, the Arms Con-
trol and Disarmament Agency (ACDA) will
review the SALT II negotiating history to
determine whether the Soviet Union and
the United States reached a common under-
standing during these discussions on RPVs
designed for missions other than recommen-
dations and communications that would also
be considered by the two sides not to be
"weapon-delivery vehicles."
APPLICABILITY OF THE DEFINITIONS TO MISSILE
CATEGORIES
To determine what is and is not covered
nder the INF Treaty, the agreement's defl-
'tions of "intermediate-range missile,"
horter-range missile," "GLBM," and
LCM" must be examined in relation to
four general categories of ground-launched
missiles of INF ranges:
A. Nuclear-armed missiles;
B. Conventionally-armed missiles (i.e.,
missiles armed with traditional types of
non-nuclear warheads, such as warheads
filled with chemical explosives or chemical
warfare agents);
C. Futuristic or exotic types of non-nucle-
ar missile weapons (e.g., missiles armed with
a laser kill device or a microwave pulse gen-
erator or a missile that is designed to collide
with its target (kinetic kill); and
D. Unarmed drones and RPVs, such as
missiles for surveillance, reconnaissance,
communications, and target designation, or
for any other non-weapon-delivery purpose.
CATEGORY A: NUCLEAR-ARMED MISSILES
There is no question that current and
future "intermediate- and shorter-range
missiles" armed with nuclear warheads are
_banned by the INF Treaty and that both
Parties consider themselves bound by this
prohibition. From the outset of the negotia-
tions, both sides agreed that the Treaty
would apply to nuclear-armed GLCMs and
GLBMs of INF range,
CATEGORY B: CONVENTIONALLY-ARMED MISSILES
There is also no question that current and
future "intermediate- and shorter-range
missiles" armed with non-nuclear, or "con-
ventional," warheads (for example, war-
heads filled with high energy explosives 02
chemical warfare agents) are banned by the
Treaty and that both sides consider them-
selves to be so bound. In this regard, the ac-
ronym "INF" (which stands for Intermedi-
ate-range Nuclear Forces) is somewhat mis-
leading, since the Treaty eliminates conven-
tional as well as nuclear GLCMs and
GLBMs of INF range. In fact, the INF
Treaty could be described as the first con-
ventional arms control agreement between
the superpowers in the post-war era.
In contrast to Category A, the United
States did not agree to the Soviet position
that the Treaty would apply to convention-
ally-armed GLCMs and GLBMs of INF
range until late in the negotiations (Septem-
ber 1987). The Administration's rationale
for this decision is discussed in the Armed
Services Committee report on the Treaty.
CATEGORY C: FUTURISTIC MISSILE WEAPONS
In contrast to the ultimate U.S. decision
to agree to ban conventionally armed
GLCMs and GLBMs of INF ranges?which
followed a protracted and hard-fought
debate within the Administration?the im-
plications of this decision for potential
types of futuristic or exotic non-nuclear-
armed GLCMs and GLBMs of INF range ap-
pears to have received little, if any, high-
level policy review prior to the Senate hear-
ings on the Treaty.
In response to a recent letter from Sena-
tor Quayle (Attachment 1), former Secre-
tary Weinberger and former ACDA Director
Adelman wrote letters denying that there
was any understanding within the Adminis-
tration that the Treaty would apply to fu-
turiatic systems. (Attachments 2 & 3.) This
contention was disputed by Administration
officials during an April 14 Armed Services
Committee hearing.
For example, General Herres, Vice Chair-
man of the Joint Chiefs of Staff, testified:
I would just have to say, with all due re-
spect, Mr. Weinberger has to be mistaken.
You know, if weapons based on future tech-
nologies had meant for exclusion. . . there
would have to be some record or some docu-
mentation which defines the scope of that
exclusion. I do not know of one shred of
documentation anywhere. I have never
heard any discussion in all of these delibera-
tions that at any time ever suggested that
there was any intent of defining the scope
of some exclusion that would facilitate the
use of future technologies for weapons
using these platforms.
At this hearing, Ambassador Woodworth,
the Deputy Chief INF Negotiator, conceded
that "at the time of that decision, which is
what he [Mr. Weinberger] was addressing,
we had not explicitly discussed futures, and
I think that is what he was reflecting." Gen-
eral herres agreed with the point that it was
more due to assumption and inference than
any explicit discussion that policy-makers
would have concluded that futures were in-
cluded. Ambassador Woodworth went on to
say, however, that "we have looked at this
issue in OSD, as we have in the entire Ad-
ministration, and we have reached a conclu-
sion about what we think the logic of the
record and the Treaty means, and it is diffi-
cult to reach any other conclusion." In this
regard, Ambassador Woodwrth testified,
"it appears he [Mr. Weinser] does not
agree with the position we have taken."
Whatever the degree of understanding at
the time the decision WRS made to ban con-
ventionally-armed GLCMs, the Administra-
tion now insists that the Treaty prohibits
the deployment of INF missiles using future
or "exotic" technologies. The question now
before the Senate is what is the effect of
the Treaty in this area. As Ambassador Glit-
man testified on April 14 with regard to the
Weinberger and Adelman letters:
? ? ? it is not a question of who is telling
the truth. It seems to me it is a question of
what does the Treaty do and what does it
not do.
The question of whether potential types
of non-nuclear GLCMs and GLBMs of INF
ranges that would carry or be employed as
futuristic or exotic weapons are covered
under the Treaty bears directly on the defi-
nition of "weapon-delivery vehicle." The
Treaty clearly specifies that any cruise or
ballistic missile of INF range that is ground-
launched is banned if it is a "weapon-deliv-
ery vehicle." By implication, any cruise or
ballistic missile of INF range that is ground-
launched and is not a "weapon-delivery ve-
hicle" is permitted. As will be noted, this
differentiation also relates directly to the
determination of which types of missiles
qualify as permitted Category D missiles,
i.e., unarmed drones or RPVs used for "non-,
weapon-delivery" purposes, such as surveil-
lance or reconnaissance.
Although the Treaty does not contain a
definition of "weapon-delivery vehicle," the
Article-by-Article Analysis of the Treaty
submitted by Secretary Shultz stated that
this term meant "those types of tGLCMs
and GLBMs] that have been ? ? ? flight-
tested or deployed with any type of warhead
device or simulation thereof" (Emphasis
added.) This suggests that any GLCMs or
GLBMs which did not carry a warhead was
excluded. Put differently, this suggests that
GLCMs or GLMBs of INF range which at-
tacked their targets through more exotic
means (such as a laser, a microwave pulse
generator or direct impact (kinetic kill))
were not covered.
During hearings on 18 and 24 March, the
Administration testified to the Armed Serv-
ices Committee that is could not say what
Its position was on this key definitional
issue or on which specific types of future or
"exotic" technology systems were banned
by the Treaty. On March 30, Ambassador
Glitman appeared before the Foreign Rela-
tions Committee and testified that the Ad-
ministration had determined that the term
"weapon-delivery vehicle" meant "any INF
ballistic or cruise missile system that is
tested or deployed to carry a weapon?that
is, any mechanism or device which when di-
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S 6708 CONGRESSIONAL RECORD -- SENATE
rected against a target is designed to
damage or destroy it."
That description incorporates means of
damage or destruction other than warheads
and thus is a more inclusive definition than
that contained in the Article-by-Article
Analysis. In subsequent closed hearings
before the Armed Services and Foreign Re-
lations Committees, Administration wit-
nesses discussed the application of this defi-
nition with reference to specific types of
future weapons which would and would not
be covered by this definition.
CATEGORY D: UNARMED DRONES AND RPVS
Any cruise or ballistic missile of INF
range that is ground-launched and that is
not covered by the Administration's defini-
tion is necessarily encompassed under Cate-
gory D. In other words, if a cruise or ballis-
tic missile of INF range that is ground-
launched does not carry a "mechanism or
device which when directed against a target
is designed to damage or destroy it," then it
is permitted under the Treaty.
A list of potential RPV/drone mission
areas which the United States would pre-
sumably regard as "non-weapon-delivery"
missions would include: Surveillance; recon-
naissance; communications relay; signals in-
telligence (electronics eavesdropping); de-
coying; leaflet dropping; chaff dispensing
(radar interference); weather data gather-
ing; bomb damage assessment; target desig-
nation; electronic countermeasures or other
forms of electronic warfare.
However, since the definition of "weapon-
delivery vehicle" was announced by the Ad-
ministration on March 30, questions have
arisen as to its meaning and its implications
for RPV/drone missions areas such as those
listed above. For example, what is meant by
the words "Designed to damage"? Is a radar
jammer or high-powered microwave genera-
tor which renders enemy electronics sys-
tems inoperable "designed to damage"? Is a
laser device which "blinds" optic sensors on
enemy weapons platforms "designed to
damage"? What if the "damage" caused by
such systems is incidental to the system's
primary function? Furthermore, what is
meant by "damage"? Does "damage" mean
damage that is lasting unless repaired, or
does it also encompass temporary interfer-
ence effects which cease when the mecha-
nism or device in question stops operating?
Answers to these questions have been pro-
vided by Administration witnesses in closed
committee sessions. There is no indication,
however, that any discussions at this level
of detail and specificity have taken place
with the Soviet Union since the Treaty was
signed.
NEGOTIATING HISTORY
The Administration has conceded that at
no point in the negotiations did the two
Parties specifically discuss INF missiles
using future technologies and that the Par-
ties never specifically addressed the mean-
ing of the term "weapon-delivery vehicle."
The Administration contends that this
omission was not an oversight per se, but
rather reflects a general policy of the two
sides that it would not be necessary to nego-
tiate the meaning of "ordinary, commonly
understood" words.
Nonetheless, the Administration does
point to several U.S. memoranda of conver-
sations (memcons) with the Soviet side
during the negotiations which it contends
contain inferences that the Soviet Union
viewed the scope of the Treaty broadly,
with no exemption for any type of future
conventionally-armed GLCMs or GLBMs.
This view was challenged by some members
of the Armed Services Committee during
the hearings, primarily because the mem-
cons related to negotiations on whether con-
ventionally-armed GLCMs would be prohib-
ited under the Treaty. These memcons have
been provided to the Senate but remain
classified.
Finally, the Administration cites the
Vienna Convention on the Law of Treaties
as supportive of its position. Article 31 of
that agreement provides that treaties "shall
be interpreted in good faith in accordance
with the ordinary meaning to be given to
the terms of the treaty in their context."
Based on these arguments, the Adminis-
tration has asserted that no clarification of
the Soviet position on this issue is technical-
ly required since the Administration be-
lieves that a common understanding has al-
ready been established. As stated in Secre-
tary Shultz's letter to Senator Dole of April
20:
The Administration has concluded that
the INF negotiating record, viewed in con-
junction with the Treaty text and with cus-
tomary international law and the Vienna
Convention on the Law of Treaties, demon-
strate that the United States and the Soviet
Union share a common understanding that
all U.S. or Soviet ground-launched missiles
with ranges between 500-5,500 kilometers,
both present and future, should be subject
to the provisions of the INF Treaty.
According to Secretary Shultz, it is also
the "considered judgment" of the Adminis-
tration that "the Parties understand the
term 'weapon-delivery vehicle' to mean any
INF ballistic or cruise missile system that is
tested or deployed to carry a weapon?that
is, any mechanism or device which when di-
rected against a target is designed to
damage or destroy it" i.e., the same defini-
tion which Ambassador Glitman presented
on March 30,
RECENT DIPLOMATIC INITIATIVES
Although the Administration had stated
that no clarification was technically re-
quired, Secretary Shultz elected to raise the
future weapons question with Mr. Shevard-
nadze on the occasion of their April 14
meeting in Geneva to sign the United Na-
tions convention on Afghanistan. On April
15, the Soviet Ambassador in Washington
delivered a letter to the Secretary from the
Foreign Minister which commented on their
discussion in Geneva.
Unfortunately, the letter raised more
questions about the Soviet position than it
answered. Compounding the problem was
the fact that the Senate was provided two
versions of the letter which differ in key re-
spects. The first was an "unofficial" Eng-
lish-language translation of the original
Russian text prepared by the Soviet Gov-
ernment that was sent by Ambassador Kam-
pelman to Senator Pell on April 18. (Attach-
ment 4.) The second was an "official" State
Department translation sent by Secretary
Shultz to Senator Dole on April 20. (Attach-
ment 5.)
There were several problems with the
April 15 Shevardnadze letter. For example,
the first translation of the letter raised a
question as to whether the Soviet Union
agrees that unarmed (i.e., Category D) mis-
siles are exempted from the Treaty. It is
possible to read the phrase in the first
translation of the letter "intermediate-
range and shorter-range missiles, however
equipped" as including surveillance drones
or RPVs and other non-weapons-equipped
missiles. In the second, official translation,
the phrase "however equipped" was
changed to read "however armed." The
State Department explained that the Rus-
sian word in question could be translated
both as "armed" and "equipped" but that
during the INF negotiations it was standard
practice to translate it as "armed".
May 26, 1988
Second, in both translations, the letter re-
ferred only to missiles which are equipped
with "warheads." This is significant since,
as previously noted, this issue first arose, in
part, because the Article-by-Article Analysis
appeared to indicate that only those INF
missiles equipped with "warheads" were
covered.
Furthermore, the letter failed to provide
an explicit assurance that the Soviet Union
agrees with the Administration's contention
that the Parties understand the term
"weapon-delivery vehicle" to mean "any
INF missile which carries a weapon, that is,
any mechanism or device which, when di-
rected against a target, is designed to
damage or destroy it."
Recognizing that many Senators were dis-
satisfied with the April 15 Shevardnadze
letter, the Administration is now proposing
to initiate an exchange of diplomatic notes
with the Soviet Union to confirm the Par-
ties' understanding as to the definition of
"weapon-delivery vehicle" and the applica-
bility of the Treaty to future INF weapons.
The question of the content of the U.S.
note (and, in particular, the question of the
adequacy of the Administration's definition
of "weapon-delivery vehicle") is currently a
matter of discussion within the Senate. As-
suming agreement is reached on the content
of the letter, some Senators have indicated
that any exchange of notes with the Soviet
Union on this issue would have to be incor-
porated into the Treaty as a legally binding
document with the same status as the exist-
ing Memorandum of Understanding on data
and the Protocols on Elimination and In-
spection.
This requirement could be met through a
Category III Understanding requiring that,
as a condition for entering the Treaty into
force, the President obtain a formal and
binding assurance from the Soviet Union
that it regards the exchange of notes as an
integral part of the Treaty. Such an assur-
ance would have to be secured through a
procedure that would leave no doubt as to
the explicit agreement of the Soviet Union
to the Senate Understanding.
The Protocol of Exchange of Instruments
of Ratification is the normal vehicle for re-
cording such clarifications. It is this docu-
ment which both Parties sign at the time
they exchange their respective Instruments
of Ratification which specifies the effect
each Party gives to any conditions con-
tained in the Instrument of Ratification of
the other Party.
[Attachment 1]
U.S. SENATE,
Washington, DC, April 12, 1988.
Hon. CASPAR WEINBERGER,
Rogers & Wells,
Washington, DC.
DEAR CAP: As you may know, a question
has been raised in the INF Treaty hearings
as to whether or not the INF Treaty covers
not just existing INF-missiles and types like
them, but futuristic weapons as well. The
specific question that the Senate Armed
Services Committee is now trying to resolve
is what the common understanding was
during our negotiation of the INF Treaty of
the phrases "weapons delivery vehicle" and
"deployed for weapons delivery."
The question is being debated because of
the difference between the Administration's
article-by-article analysis of the Treaty an
the Administration's testimony concernin
the meaning of "weapons delivery vehicle'
The Administration's analysis clearly su
gest,s that only cruise or ballistic missil
carrying existing types of weapons?i.
chemical, high explosive or nuclear w
heads?were covered by the Treaty. Inde
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CONGRESSIONAL RECORD ? SENATE . S 6709
the analysis says "weapons delivery vehicle"
refers to missiles deployed or flight tested
"with any type of warhead device or simula-
tion thereof."
The Administration's most recent testimo-
ny, on the other hand, goes well beyond this
analysis to include not just warheads, but
"any mechanism or device which, when di-
rected against a target, is designed to
damage or destroy it." This would include
ground-launched missiles carrying any radio
or directed energy device or kinetic kill
mechanisms that might do significant harm
to their intended target.
The claim now made is that this latter all
encompassing broad interpretation of the
phrase "weapons delivery vehicle" was com-
monly understood at the time. This, then,
brings me to my question. Is it your recollec-
tion, when you were Secretary of Defense,
that it was commonly understood that the
INF Treaty was going to cover not just INF-
type missiles carrying existing types of war-
heads, but futuristic INF weapons carrying
payloads unrelated to nuclear, chemical or
high explosive munitions? Indeed, did you
ever discuss this question with any official
or have the implications of such a ban
against futuristic weaponry evaluated by
our military prior to the Treaty's signature?
[Attachment 21
ROGERS & WELLS,
Washington, DC, April 13, 1988.
Hon. DAN QUAYLE,
Hart Senate Office Building,
Washington, DC.
DEAR DAN: In response to your question as
to what consideration was given to "futuris-
tic" weaponry beyond existing nuclear,
chemical and high explosive munitions,
prior to signing the INF Treaty, I can
simply state that there was no understand-
ing of any kind that I knew about that the
treaty covered anything related to these so-
called futuristic weapons.
Certainly, there was no discussion or eval-
uation of the military sufficiency questions
involved in banning futuristic weaponry
that I ever participated in, and I never
heard any others having such a discussion.
When conventionally armed missiles are
mentioned in the treaty, my clear under-
standing was that everyone on our side was
talking only about existing types of INF,
cruise or ballistic missiles, or types similar
to them carrying a conventional type?i.e.,
high explosive or chemical?munition.
Indeed, had there been any such sugges-
tions that "futuristic" weapons were
banned, I would have opposed it in the
strongest possible terms, because it would
have had an obvious adverse effect on SDI
for us to agree to any limitation on any sys-
tems not yet designed or "futuristic" sys-
tems, and would have enabled the Soviets to
argue that they have finally succeeded in
making our SDI efforts ineffective.
With best wishes,
CAP.
[Attachment 3]
KEN ADELMAN,
Arlington, VA, April 13, 1988.
Hon. DAN QUAYLE,
U.S. Senator,
Washington, bc.
DEAR DAN: First, to answer the two ques-
tions posed in your letter of April 12th. (1) I
cannot recall the issue of futuristic INF
weapons ever arising during my tenure as
ACDA Director. It was certainly not dis-
cussed in any National Security Council
meeting I attended?and I attended all deal-
ing with arms control?nor any meeting
'th Soviet officials with which I am famil-
ar. (2) I am not aware of a ban on futuristic
INF weaponry ever being evaluated for its
military or arms control implications. Again
because futuristic systems was just not an
Issue then.
Second, to go beyond your questions: I
feel strongly that the Armed Services Com-
mittee and the Senate as a whole needs to
clear up all known ambiguities now. There
will be ambiguities enough uncovered later
without letting some pass by now. Hence, if
the President believes that futuristic sys-
tems should be. banned by the treaty?
which I take it he does?that prohibition
should be clearly agreed, not only between
the Administration and the Senate but
much more importantly between the Soviets
and the Americans.
If this futuristic ban constitutes no prob-
lem for the Soviets, there should be no
problem in getting their clear confirmation.
If there would be a problem, I would be con-
cerned. It would be similar to the Soviet re-
fusal in 1971-72 to agree to our simple and
straight-forward language banning futuris-
tic ABM systems, a refusal which led me to
consider the narrow interpretation of the
ABM Treaty incorrect. I do not believe the
U.S. should ever be bound by arms control
restrictions to which the Soviets are not
bound.
I know that it is the Senate's intention to
do a more thorough job on INF than on pre-
vious arms control treaties. By clearing up
known ambiguities now, not with the Ad-
ministration but primarily with the Soviets,
we can avoid a grand debate over the true
meaning of the INF Treaty sixteen years
from now, as we're now stuck with, on the
ABM Treaty.
I stand ready to help the Senate in any
way possible.
Sincerely,
KENNETH L. ADELNIAN,
Ambassador.
[Attachment 4]
DEPARTMENT OF STATE,
Washington, DC, April 18, 1988.
Hon. CLAIBORNE PELL,
Chairman, Committee on Foreign Relations,
U.S. Senate
DEAR SENATOR PELL: In my letter to you of
April 14, I reviewed the Administration's po-
sition on the issue of the possible use of
future technologies in connection with INF
missile systems. Although the Administra-
tion did not believe it necessary to confirm
with the Soviet Union our common under-
standing on this issue, the Secretary raised
this question with Foreign Minister She-
vardnadze in Geneva on April 14 in order to
meet the expressed concerns of some Sena-
tors.
On April 15, Ambassador Dubinin deliv-
ered Minister Shevardnadze's reply to the
Secretary, a copy of which is attached. As
' you will note, Minister Shevardnadze con-
firmed that the Soviet side's understanding
of this issue is the same as that of the U.S.
side.
? Sincerely,
MAX M. KAMPELMAN.
[Unofficial translation]
MR. SECRETARY: In our conversation in
Geneva on April 14 you raised the question
of the INF Treaty interpretation in connec-
tion with the fact that a question has arisen
during the US Senate debate on this treaty
as to whether the ban covers the intermedi-
ate- and shorter-range missiles that could be
equipped, with warheads developed with
some future technologies. As you noted, in
responding to senators the administration is
saying that the Treaty ban covers interme-
diate- and shorter-range missiles, however
equipped.
At the same time you were interested in
knowing the Soviet side's understanding of
this question so as to convey it to the US
senators.
I would like to confirm to you once again
thal the Soviet side's understanding of this
question is the same as that of the US
side's. The definitive view of the Soviet side
is that the Treaty on the Elimination of In-
termediate-Range and Shorter-Range Mis-
siles bans these two classes of missiles, how-
ever equipped, nuclear or any non-nuclear.
.[Attachment 5]
THE SECRETARY OF STATE,
Washington, DC, April 20, 1988.
Hon. ROBERT DOLE,
U.S. Senate,
DEAR BOB: Many thanks for your letter of
April 13. I was reassured to learn that you
have again become involved in INF Treaty
issues.
The Administration has given careful con-
sideration to the question of the INF Trea-
ty's effect on future technologies, ever since
Senator Quayle raised this issue in Senate
Armed Services Committee hearings begin-
ning in January. The Administration has
concluded that the INF negotiating record,
viewed in conjunction with the Treaty text
and with customary international law and
the Vienna Convention on the Law of Trea-
ties, demonstrates that the United States
and the Soviet Union share a common un-
derstanding that all U.S. or Soviet ground-
launched missiles with ranges between 500-
5500 kilometers, both present and future,
should be subject to the provisions of the
INF Treaty.
During the INF negotiations, the United
States and the Soviet Union did not specifi-
cally discuss INF ballistic and cruise missiles
uring future technologies, such as lasers, to
damage or destroy targets; nor did the Par-
ties specifically address the meaning of the
term "weapon delivery vehicle". Instead, the
Parties recognized that it was unnecessary
to define in the Treaty terms which had or-
dinary, commonly understood meanings or
where the common sense meaning of the
term was intended by the Treaty. Indeed,
Article 31 of the Vienna Convention on the
Law of Treaties (which the U.S. recognizes
as largely reflecting customary internation-
al law) provides that treaties "shall be inter-
preted in good faith in accordance with the
ordinary meaning to be given to the terms
of the treaty in their context. . ."
In the context of the INF Treaty, it is our
considered judgment that the Parties under-
stand the term "weapon-delivery vehicle" to
mean any y INF ballistic or cruise missile
system that is tested or deployed to carry a
weapon?that is, any mechanism or device
which when directed against a target is de-
signed to damage or destroy it.
The Senate Armed Services Committee,
however, called upon the Administration to
"demonstrate to the Senate's satisfaction,
before the final floor vote on advice and
consent, that the. United States and the
Soviet Union reached a clear understanding
on this question." In addition, some Sena-
tors, including Senators Nunn and Quayle,
have called a written: confirmation of this
understanding with the Soviet Union. As
? you know, the Administration believes that
the INF Treaty stands on its own merit and
opposes any Treaty amendments and condi-
tions.
To meet these concerns by some Senators
without requiring a written Soviet confirma-
tion, which could possibly reopen the nego-
tiations, the President decided that I should
raise the issue with Foreign Minister She-
vardnadze during my April 14 meeting with
him in Geneva. Minister Shevardnadze told
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S 6710 .CONGREssIoN.4,itgcpp.7--,SENATE
me that he was not aware there was a prob-
lem, but that he would look into the matter
and get back to me.
On April 15 Ambassador Dubinin deliv-
ered Minister Shevardnadze's reply, a copy
of which is attached. As you will note, Min-
ister Shevardnadze confirms that the Soviet
side's understanding of this issue is the
same as that of the U.S. side.
I look forward to working with you in a
common effort to conclude the Treaty rati-
fication process successfully.
Sincerely yours,
GEORGE P. SHULTZ.
(Translation]
DEPARTMENT OF STATE,
DIVISION OF LANGUAGE SERVICES,
(L$ No. 125833, BL/A0, Russian)
DEAR MR. SECRETARY: In the course of our
conversation in Geneva on April 14 you
touched on the question of the interpreta-
tion of the INF Treaty in connection with
the fact that during the U.S. Senate debate
of this Treaty, the question has arisen
whether the ban extends also to intermedi-
ate and shorter-range missiles which could
be armed with warheads developed with
some future technologies. As you noted, the
Administration's response to the senators is
that the ban under this Treaty covers inter-
mediate and shorter-range missiles, however
armed.,
At the same time, you were interested in
the Soviet side's understanding of this ques-
tion in order to convey it to the U.S. sena-
tors.
I would like to confirm to you once again
that the Soviet side's understanding of this
question is the same as that of the U.S. side.
The Soviet side unequivocally assumes that
the Treaty on the Elimination of Intermedi-
ate-Range and Shorter-Range Missiles bans
these two classes of missiles, irrespective of
their armament 1, nuclear or any kind of
nonnuclear.
Mr. QUAYLE. Will the Senator yield
for a question?
The ACTING PRESIDENT pro tem-
pore. The time for the proponents has
expired.
Mr. WARNER. Has the time for pro-
ponents expired?
Knowing of no opponents at this
time, I ask I?
The ACTING PRESIDENT pro tem-
pore. Under the general procedures,
the Senator from North Carolina
being the ranking member of the For-
eign Relations Committee, regardless
of his position, would control the op-
ponents' time.
Mr. HELMS. If the Senator will
yield, I do not know if anybody op-
poses it.
The ACTING PRESIDENT pro tem-
pore. Under the rules, the Senator
from North Carolina controls the
time. Because of that, he may yield to
the Senator from Virginia.
Mr. HELMS. I shall accept the
burden of controlling the time.
Mr. QUAYLE. Will the Senator from'
North Carolina or the Senator from
Georgia yield me a few minutes so I
can ask a question?
The Russian word used here, "osnashcheny, os-
nashcheniye" can be translated both as "armed, ar-
mament" and "equipped, equipment". During the
INF Treaty negotiations in Geneva, it was standard
practiee to translate it as "armed, armament".
Mr. HELMS. I do not know that I
have the floor.
The ACTING PRESIDENT pro tern-
pore. The Senator from North Caroli-
na has the authority to control the
time and the Chair will recognize
those to whom the Senator yields
time.
Mr. WARNER. Mr. President, may I
suggest to the Senator from North
Carolina that we proceed to frame the
amendment, put it in, and then follow-
ing that?I shall be brief?we will have
such colloquy as other Members may
desire.
Mr. BOREN addressed the Chair.
Mr. WARNER. I would suggest that
as soon as I have completed my brief
remarks, the distinguished chairman
of the Intelligence Committee be rec-
ognized for the purpose of introducing
the second part of this amendment to-
gether with the distinguished ranking
member.
Mr. COHEN. It is already part of
one.
Mr. WARNER. Very well.
Mr. HELMS. I understand the dis-
tinguished Senator from Oklahoma
has an urgent meeting he must attend.
Did he seek recognition?
Mr. BOREN. Mr. President, I thank
the Senator from North Carolina. I
am in the midst of a hearing. I was
going to ask unanimous consent, and
then perhaps I would make some very
brief comments following the Senator
from Virginia. We had originally envi-
sioned under the time agreements that
these would be separate amendments
and therefore we would have been en-
titled to 40 minutes on the amend-
ment in the second degree offered on
behalf of Senator COHEN and myself
and members of the Intelligence Com-
mittee.
Mr. President, I ask unanimous con-
sent that 40 minutes be authorized for
the discussion of this subject matter
and that it be equally divided between
the proponents and opponents of that
amendment as if it were standing
alone as a separate amendment as we
discussed that originally in the time
agreemeq.
The ACTING PRESIDENT pro tern-
pore. Is there objection? The Chair
hears none, and it is so ordered. Who
yields time?
Mr. WARNER. Mr. President, I am
happy to yield to the distinguished
Senator from Oklahoma. As I under-
stand he has a tight schedule.
Mr. BOREN. Mr. President, I thank
my colleague from Virginia very much
for yielding to me. I understand the
second-degree amendment has been
laid down by the distinguished Sena-
tor from North Carolina.
Mr. President, I am pleased to join
in proposing this amendment to the
resolution of ratification with my col-
leagues from Georgia, Virginia, and
Maine, and also we have had the able
assistance and cooperation of our
friend and colleague from North Caro-
lina. Our amendments will serve to
add the weight of this treaty to two
May 26, 1988
subsequent agreements that have been
reached between the United States
and the Soviet Union. Those agree-
ments bear the mark of Senate con-
cern and encouragement. They are tes-
taments both to the important role
that this body can play and to the
benefits that can flow from a policy
that combines firmness with reason.
The first of the subsequent agree-
ments concerns the definition of the
term "weapon-delivery vehicle" and
the application of the INF Treaty to
missiles flight-tested or deployed to
carry weapons based on future tech-
nologies. This is an issue that was first
raised in the Armed Services Commit-
tee, which has performed a signal serv-
ice to the Senate and to the country
by pursuing this matter until a clear
solution was obtained. My colleagues
the chairman and ranking minority
member of the Armed Services Com-
mittee, both of whom are also valued 'S
members of the Intelligence Commit-
tee, were steadfast in their insistence
that this issue be decided clearly and
authoritatively. They and the junior
Senator from Indiana?Senator
QUAYLE, who likewise deserves the ap-
preciation of this body?kept the pres-
sure on the executive branch and
made sure that the final outcome was
unambiguous.
The agreement concluded by ex-
change of notes in Geneva on May 12,
1988, was carefully reviewed by the
Armed Services Committee before its
submission to the Soviet Union, in a
bipartisan cooperative effort between
the executive and legislative branches.
This approach is sadly rare in recent
years, but perhaps our success in this
case will serve as a model for future
cooperation. We on the Intelligence
Committee also were consulted regard-
ing the notes to-be exchanged between
the United States and the Soviet
Union, but our contribution was clear-
ly secondary to that of the 'Armed
Services Committee.
The second subsequent agreement,
as recorded in a joint minute of May
12, 1988 signed by Ambassador Glit-
man and General Chervov, covers a
wide variety of issues relating to im-
plementation of the INF Treaty.
These are matters that the Intelli-
gence Committee followed closely for
a period of several weeks. After a
closed hearing on May 9, Senator
COHEN and I advised that these issues
were of such concern that the Senate
ought not to begin debate on the
treaty until they were settled to the
satisfaction of the United States.
The Senate's firmness in this regard
was crucial, I am certain, in convincing
the Soviet Union to meet all the U.S.
concerns on these issues. The success
in Geneva on this matter is an exam-
ple of what can be achieved when the
executive and legislative branches
work together and speak with a single
voice. Our Nation desperately needs
revitalization of the traditional spin
of bipartisanship in foreign policy.
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CONGRESSIONAL RECORD ? SENATE S 6711
There were nine issues that the
United States raised with the Soviet
Union. It is worth quickly reviewing
these issues, because they illustrate
both the sort of problems that we
must expect in implementing arms
control treaties with the Soviet Union
and?most imoortantly?how solutions
to these problems are indeed possible,
if we will be both firm and reasonable.
The first issue concerned the right
of onsite inspectors to inspect any
structure, container or vehicle that
could contain the smallest treaty-lim-
ited item. The treaty clearly calls for
this, but Soviets in the technical talks
on treaty implementation had ques-
tioned that right. The joint minute
confirms Soviet obligations under the
treaty and solves the technical issue
by specifying the small items for
which each side's inspectors may
search.
The second issue concerned the
right of onsite inspectors to inspect
the entire area of an inspection site,
including all buildings within the
outer boundaries shown on the site
diagrams appended to the memoran-
dum of understanding. Soviet techni-
cal negotiators had suggested that this
was not the case, but the agreed
minute makes this right absolutely
clear. The Soviets also agreed that any
later corrections to site diagrams will
not exclude any areas in the current
diagrams.
The third, and most complicated
issue concerned the right Of portal
monitors at Votkinsk, the final assem-
bly plant for the SS-20 and S-25 mis-
siles, to search vehicles that are large
and heavy enough to carry an SS-20
missile. The Soviets had argued that
this meant a misisle in its canister,
while the United States maintains
that it means a missile inside or out-
side its canister. The Soviet Union
agreed at Geneva not to ship out of
Votkinsk any cargo with a length or
diameter greater than that of the SS-
20 missile, but less than that, of the
SS-20 canister. They also agreed to
consider the length of the missile to be
14.00 meters for this purpose. The
United States, in turn, reassured the
Soviet Union that if no shipments
come out of Votkinsk with a dimen-
sion between that of the SS-20 and
that of its canister, the U.S. monitors
will not be inspecting any shipments
smaller than an SS-20 canister. This is
because any shipment smaller than
the SS-20 is not covered by the
treaty.
The practical effect of this compli-
cated paragraph, then, is to provide
the United States with a Soviet com-
mitment not to ship out of Votkinsk
any cargoes that we might fear were
SS-20's. Passage of this afnendment to
the resolution of ratification will make
clear that this Soviet commitment will
have the same force and effect as the
treaty itself.
The fourth issue concerned the right
f onsite inspectors to bring and use
uch equipment as cameras, weighing
devices, and radiation detection de-
vices. Soviet technical negotiators had
tried to assert a right to block the use
of equipment under some circum-
stances, but the agreed minute makes
clear that the protocol on inspections
governs this question. The agreed
minute cites, as an example, one major
issue?the obligation of host-country
escorts to photograph an object or
building if the onsite inspectors be-
lieve that a question remains concern-
ing that object or building. So the
United States achieved its objectives
on this matter as well.
The fifth issue concerned the means
by which to verify the technical data
In the memorandum of understanding
on the weights and dimensions of
treaty-limited items. The agreed
minute sets up these procedures to
U.S. satisfaction, including agreement
that the stages of the SS-20 missile
will be weighed and measured.
The sixth issue concerned the means
of determining that an SS-20 missile
slated for elimination is indeed an SS-
20. The Soviets have agreed that this
can include looking into the launch
canister from both ends and using the
same equipment and procedures that
we have developed for inspecting a
missile canister at Votkinsk. They also
agreed that if these steps should prove
insufficient to convince the 'U.S. in-
spector that the item is indeed an SS-
20, the Soviets will be obligated to do
whatever is necessary to remove the
inspector's doubts.
The seventh issue concerned the
length of the SS-12 missile's first
stage and of the SS-23 missile's pro-
pulsion stage. The Soviet Union
agreed that the length of the SS-23
stage would be changed to delete the
length of an interstate connector that
was disclosed by the photographs pro-
vided under the treaty. The SS-12
first stage's length was left un-
changed, because the interstate con-
nector on that missile does not sepa-
rate from the first stage in flight.
The eighth issue concerned each
side's requests for better photographs
of treaty-limited missiles. The Soviets
have now provided pictures of three
missiles with their front sections at-
tached, plus a picture of the front sec-
tion of the SS-20, which apparently is
not attached to the missile until it is
Inside the launch canister. The United
States, in turn, has provided the Sovi-
ets with new pictures of the Pershing
I-A and Pershing II missiles.
The final issue raised by the United
States concerned the means by which
each side will notify the other of the
intermediate stops at which missiles in
transit have been located. The Soviets
agreed to provide both the place-name
and its center coordinates in minutes.
This will enable the United States to
determine whether any questionable
items that it might observe through
national technical means are in fact
items that were moved legally under
the transit provisions of the treaty.
The agreed minute also reassures
the Soviet Union that their onsite in-
spectors may search for the second
stages of United States missiles and
are to be told by their United States
hosts where such second stages are lo-
cated. This is fully in keeping with
U.S. obligations under the treaty
itself.
Finally, the agreed minute includes
the U.S. declaration that Davis
Monthan Air Force Base, AZ, will
serve as the elimination facility for
the BGM-109G cruise missile. The
United States also agrees to inform
the Soviets of our other elimination
sites before the treaty enters into
force, which is again quite in keeping
with our obligations under the treaty.
In conclusion, Mr. President, I would
like to reiterate that the agreed
minute signed in Geneva on May 12 is
a success for United States negotiators
that shows how a firm and reasonable
approach to dealing with the Soviet
Union can result in agreements that
are to everybody's advantage. This
agreement also shows that the Senate
can play a most useful role by scruti-
nizing arms control treaties and insist-
ing upon clarity both in the treaties
and in Soviet acceptance of their
treaty obligations.
The Senate's role in this effort has
' been to strengthen the U.S. negotiat-
ing position and to remove some po-
tentially significant obstacles to the
effective implementation of this
treaty. By passing this amendment to
the resolution of ratification, we will
give these fine agreements the force
and effect of the treaty itself?and
thereby make absolutely unambiguous
the obligations on both the United
States and the Soviet Union that they
contain.
I urge all my colleagues to support
these amendments.
Again, Mr. President, I thank my
colleague from Virginia for his courte-
sy in yielding to me as I do have to
return to another meeting. I thank all
those on both committees who worked
with us, particularly the vice chairman
of the Intelligence Committee, on the
issues raised on the nine points and
the very significant contribution that
he made to the resolution of these
matters in our committee. I think it is
a tribute to the work of both of these
committees that these issues have not
been satisfactorily resolved and a trib-
ute to the administration to work with
us in order to see it happen. Again, I
thank my colleagues.
Mr. COHEN addressed the Chair.
The ACTING PRESIDENT pro tem-
pore. The Senator from North Caroli-
na.
Mr. HELMS. How much time does
the Senator require.
Mr. COHEN. Two minutes.'
Mr. HELMS. Let us make it 4 min-
utes, and the Senator can yield back
the time.
Mr. COHEN. I thank the Senator
for yielding.
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S 6712 CONGRESSIONAL RECORD ? SENATE
Mr. President, I will be brief. I would
like to associate myself, first of all,
with the remarks of the distinguished
Senator from Oklahoma, with whom I
work very closely on the Intelligence
Committee, and simply point out that
this is not a mere technicality. This is
not a technical matter, as such. 'This
addresses a very substantive matter re-
garding the treaty.
It came about as a result of not only
a different interpretation of treaty
terms on the part of the Soviet Union
but an apparent Soviet attempt to re-
pudiate the actual text of the treaty
regarding what I consider to be rather
fundamental matters such as what ob-
jects will be inspected, where the in-
spectors will conduct their inspections,
and what inspection equipment will in
fact be used.
It struck us as puzzling, certainly,
that in the technical talks the Soviet
side would raise objections to the clear
language of the treaty. This was so se-
rious that Senator BOREN and I felt
that we could not in good conscience
recommend that the treaty be brought
to the floor for debate and delibera-
tion and advice and consent to ratifica-
tion until such disputes were clearly
resolved, so that there would be no
ambiguity, no misinterpretation, no
potential for the Soviets at sdme
future time to assert that they had a.
different interpretation and therefore
not be bound by the clear wording of
the treaty text.
That was the reason we publicly rec-
ommended to Senator BYRD and to
Senator Doi E that the treaty not come
to the Senator floor until these prob-
lems could be resolved. As a result of
the objections raised in the Intelli-
gence Committee, Ambassador Gilt-
man, Secretary Shultz, and others
were able to resolve these disputes in a
record period of time, about a day and
a half or 2 days. The reconciliation of
these points they achieved I think has
been clearly established now. We have
this resolution in the agreed minute of
May 12 which is addressed by the
amendment now before the Senate.
I would simply like to point out that
we have insisted that it be a category
III. This is because while the agreed
minute may in fact be legally binding
upon the Soviets and upon the United
States, nonetheless an agreed minute
might be viewed by some as subordi-
nate to the treaty itself. Moreover, an
agreed minute could be changed in the
future without the consent of the U.S.
Senate. We want to make it perfectly
clear that the agreed minute cannot
be terminated or altered by the execu-
tive branch without the advice and
consent of the Senate. For these rea-
sons, we insisted it be a category III so
that there is no question that the
agreed minute has the same status as
the treaty itself.
The agreed minute, itself, makes
clear the resolution of those areas of
dispute?such as the smallest size
object subject to inspection; where the
inspectors can, in fact, conduct inspec-
tions; what size object shall not be
shipped out of the Votkinsk plant; and
the equipment that will be used in the
inspection process.
All of that now is clearly set forth in
the agreed minute which is made inte-
gral to the treaty by this category III
amendment.
I think it is a very substantive
matter addressed by the agreed
minute and the amendment. I think
we should move toward adoption of
the amendment as soon as possible.
I thank the Senator from North
Carolina for yielding.
Mr. HELMS and Mr. WARNER ad-
dressed the Chair.
The ACTING PRESIDENT pro tern-
pore. The Senator from Virginia.
Mr. WARNER. Mr. President, first I
would like to correct a possible error
at the desk. The amendment submit-
ted by the Senator from Georgia and
myself would be known as the Nunn-
Warner amendment, which is the first
part of the amendment that is now
pending.
Mr. President, I wish to associate
myself with the remarks of the distin-
guished chairman of the Armed Serv-
ices Committee, Mr. Nurng.
The ACTING PRESIDENT pro tem-
pore. It will take unanimous consent.
Mr. WARNER. Mr. President, I ask
unanimous consent that the technical
change be made.
The ACTING PRESIDENT pro tern-
pore. Without objection, it is so or-
dered.
Mr. COHEN. Might I reserve the
right to object? The first part of the
amendment is the Nunn-Warner.
Mr. WARNER. That is correct.
Mr. COliEN. But I understand the
Boren-Cohen provision regarding the
agreed minute on inspections is now
part of the Nunn-Warner.
Mr. WARNER. Mr. President, the
confusion arose when I submitted the
amendment which started off as
Warner. I wanted to turn it to the
order that we listed in the amendment
which is Nunn-Warner-Boren-Dole.
And Mr. HELMS-
Mr. COHEN. Is it a separate amend-
ment which will be debated shortly?
Mr. WARNER. That is correct.
The PRESIDING OFFICER. Who
yields time? As to the time available,
the Senator from North Carolina has
34 minutes but the Senator from
Maine would have 14 minutes on the
Boren unanimous consent.
Mr. HELMS. Mr. President, if I may
interject.
The PRESIDING OFFICER. The
Senator from North Carolina.
Mr. HELMS. Mr. President, we
thought there was going to be trouble
at the time we lumped all of it togeth-
er. I do want a little time to speak in
support of the - Nunn-Warner, and I
assume that I will be added as a co-
sponsor of it. While I am at it, I ask
unanimous consent that, if I am not
identified as a cosponsor of Nunn-
Warner, that I may be made a cospon-
sor.
May 26', 1988
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. HELMS. I also ask unanimous
consent that on the second-degree
amendment, the distinguished majori-
ty leader, Mr. BYRD, the distinguished
minority leader, Mr. DOLE, and the dis-
tinguished assistant minority leader,
Mr. SIMPSON be added as cosponsors of
the second-degree amendment.
The PRESIDING OFFICER. With-
out objection,-it is so ordered.
Who yields time,
Mr. WARNER. Mr. President, if the
Senator would indulge me.
Mr. NUNN addressed the Chair.
The PRESIDING OFFICER. The
Senator from Georgia.
Mr. NUNN. Mr. President, I ask
unanimous consent, because there has
been some confusion on this, that the
amendment be listed as the Nunn-
Warner-Boren-Cohen-Helms amend-
ment. That was the way we had in-
tended it to go to the desk to begin
with. I am not sure it went to the desk
quite that way. But nevertheless I ask
unanimous consent that it be listed
that way.
The PRESIDING OFFICER (Mr.
REID). Hearing no objection, that will
be the order.
Mr. NUNN. I thank the Chair. It is
my understanding also that the
second-degree amendment will be
listed as the Helms amendment or has
been listed as the Helms amendment.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. WARNER. Mr. President, at this
time I will proceed under the time al-
located by the Senator from Virginia -
to the Senator from North Carolina.
Mr. QUAYLE addressed the Chair.
The PRESIDING OFFICER. Who
yields time to the Senator from Indi-
ana?
Mr. WARNER. Mr. President, I
think we have a rather informal ar-
rangement on time. The Senator from
North Carolina controls a block which
I am sure he is willing to yield.
Mr. COHEN. I think I have 14 min-
utes of Senator BOREN'S time remain-
ing.
The PRESIDING OFFICER. The
Senator is correct.
Mr. COHEN. I yield such time as the
Senator from Indiana may consume.
The PRESIDING OFFICER. The
Senator from Indiana is recognized for
14 minutes.
Mr. QUAYLE. Mr. President, I rise
to try to put into the RECORD a little
bit of definitional history to these
agreed-upon diplomatic notes of ex-
change.
I wonder if either the chairman of
the Armed Services Committee or the
ranking member can give me what the
origin is of this commonly understood
definition of a weapon?where it came
from. I have looked long and hard for
the origin of the definition o
"weapon" which is commonly under
stood. I have looked in Webster's di
tionary. I have looked in the Joi
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
Chiefs of Staff dictionary. I have
looked in the Russian military diction-
ary. I do not find the commonly un-
derstood definition of a weapon as
something that is designed to damage
and destroy.
I believe that the definition was
somewhat discovered or made up
along the way. That is fine. We agree
now. The Soviet Union and the United
States agree on it. There is no dispute
on the agreement. I am just curious, as
a matter of record and historical per-
spective, where we got this definition
of weal:ion.
Mr. WARNER. To the extent we re-
ceived it, it was received from the au-
thoritative testimony of administra-
tion witnesses.
Mr. QUAYLE. It was received from
the authoritative testimony of admin-
istration witnesses, and where did they
get the definition?
Mr. WARNER. Mr. President, the
hearing record may reflect that. So far
as I know, it was a term that was gen-
erally accepted, they felt, within mili-
tary parlance, and they selected and
used it.
Mr. QUAYLE. Is there any defini-
tion of "weapon"?and the Senator
from Virginia is a former Secretary of
the Navy?that it is something de-
signed to damage and destroy?
Mr. WARNER. Mr. President, so far
as I know, there is no recorded defini-
tion.
Mr. QUAYLE. Was there anything
in the negotiating record?any letters,
any discussion?that this definition of
weapon was something that was de-
signed to damage or destroy?
Mr. WARNER. Not to the knowl-
edge of this Senator.
Mr. QUAYLE. In other words, there
is absolutely nothing in the negotiat-
ing record, no discussion beforehand,
of this commonly-understood defini-
tion of weapon. That is my under-
standing as well.
Now that we are on this commonly-
understood definition, it gets into in-
terpretation. The Senate, so far as this
issue in the future is concerned, did
the right thing, because we were told
by administration witnesses?we raised
the question, and first they could not
give us an authoritative definition of
weapon or weapon delivery vehicle.
But then they came back and said it is
commonly understood.
If we had relied on that commonly
understood definition, the Senate
would have made a grave mistake, be-
cause what the Armed Services Com-
mittee demanded in testimony before
the Foreign Relations Committee was
that we have to nail down this defini-
tion and have to nail it down with the
Soviet Union. I thought that once we
had this commonly understood defini-
tion of weapon, we should bring it up
ith Foreign Minister Shevardnadze
d say, "This is our commonly under-
tood definition of weapon." I under-
ood it was orally communicated, that
was designed to damage or destroy a
get. I was under the impression
that they understood that was the
case.
Then we received a letter from For-
eign Minister Shevardnadze, and he
used the word "warhead." Warhead
was the same definition used by the
Sate Department article-by-article
analysis.
So, we never did have this definition
of what a weapon was or what a
weapon delivery system was. To my
knowledge, we simply made it up. We
created this definition. The Soviets
now agree to this definition.
Instead of just relying on testimony
that was given by administration wit-
nesses, the Senate rightfully demand-
ed that we go back and ascertain that
the Soviet Union agreed wih this defi-
nition; and that was good, constructive
dialog and good, constructive work.
The Senate really got into this issue.
We went to the negotiating record
and there was nothing in the negotiat-
ing record. We asked the administra-
tion witnesses whether there was any
discussion beforehand of the so-called
futuristics, and the answer came back
that there were not any real discus-
sions?no memorandum, no oral dis-
cussions. As a matter of fact, the
former Secretary of Defense, intimate-
ly involved in the negotiations, said fu-
turistic issues were never discussed.
Mr. WARNER. Mr. President, will
the Senator yield?
Mr. QUAYLE. I yield.
Mr. WARNER. The Arms Control
and Disarmament Agency did send to
the Senate an interagency definition
of what constitutes a weapon delivery
system.
Mr. QUAYLE. When was that defi-
nition?
Mr. WARNER. I will soon be able to
supply the Senator with that defini-
tion.
Mr. QUAYLE. They have a defini-
tion as of today?
Mr. WARNER. No. It was sent to
the Senate in the course of the hear-
ings.
Mr. QUAYLE. A definition of a
weapon?
Mr. WARNER. A weapon delivery
system.
A weapon delivery vehicle is defined
as a weapon that when directed
against a target, it will damage or de-
stroy it. Damage and destroy are de-
fined as follows:
Damage means an externally caused
change in the target condition which
requires that the target be repaired by
external intervention in order to be
able, once again, to perform its origi-
nal function.
Destroy means an externally caused
change in target condition such that
restoration of the target to its original
condition requires at least as much
tim6 and effort as to create the target
from scratch.
Mr. QUAYLE. That was established
after we raised the question of the fu-
tures. Is that correct?
That is my point. We did not have
this commonly understood definition
S 6713
of weapon until the issue was raised:
and once the issue was raised, they
said it is commonly understood. If we
just relied on that testimony as com-
monly understood, the Soviet Union
had a commonly understood defini-
tion, according to the Shervadnadze
letter, of "warhead" or "however
armed" or "however equipped," which-
ever translation you want to use.
So I think the record clearly shows
that this was not commonly under-
' stood, that it was a definition simply
made up once these questions came;
and I think that is a very important
fact, as we take very cautious delibera-
tions on treaties. We did not just rely
upon the testimony of administration
officials. We said: "You have to do
more than that, because what you say
is commonly understood, we cannot
find."
If we stopped there and said we
agree with it, that it is commonly un-
derstood, the Senate would not have
done its job. But the Senate did its
job. It was not commonly understood,
even though we were told that, and we
went back, and we now have this defi-
nition which is agreed upon.
I think it is unfortunate that we got
into the banning of futuristics. It is
difficult to ban something we do not
know anything about. I hope others
will agree with that. I think there is
strong agreement. I know that in the
discussions in the Armed Services
Committee and the Intelligence Com-
mittee, it was very perplexing to try to
ban something we did not know any-
thing about. Banning things in the
future is very difficult.
Mr. President, another problem we
have with this definition is, how do we
define damage? Damage is something
that needs repair. If you damage
something temporarily and it does not
need repair, that is OK; but if you
damage something and it needs repair,
that is not OK. If you design a weap-
ons system that does not have damage
that needs repair, that is OK, too.
So we are getting into verification,
of getting inside the Soviet mind and
verifying intent, verifying whether a
system was designed to do something.
I submit to the Senate that that is
almost impossible. I think it is impossi-
ble, unless you are simply going to
take a statement of good faith: "Oh,
well, this weapons system was not de-
signed to damage, and therefore it was
OK."
I am sure the Congress of the United
States will make sure that the Defense
Department and this administration
do not go beyond that. I am not sure
that the supreme Soviet and the con-
stituency in the Soviet Union will do
that. I think that when we get into
verifying design and intent, it is impos-
sible.
Mr. WARNER. Mr. President, I ask
the Senator to yield for the purpose of
putting into the RECORD a complete
definition of damage, which we under-
stood in the course of our hearings to
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S 6714 CONGRESSIONAL RECORD ? SENATE
be the authoritative representation of
the administration.
Damage is acceptable if it can be in-
ternally repaired. By that I mean, the
system repairs itself.
Mr. QUAYLE. Then, it is not
damage?
Mr. WARNER. It is not damage. But
we have to bring in some external as-
sistance.
Mr. QUAYLE. In other words, if it
can self-repair, it is OK; but if it does
not self-repair, you cannot do it.
Mr. WARNER. The Senator is cor-
rect.
Mr. QUAYLE. If you would design a
weapons system that you did not want
to damage but it happened to damage,
that would be OK, because it was de-
signed not to damage. We have nation-
al technical means. I am not sure how
these national technical means are
going to get inside the Soviet mind,
and figure out how something is de-
signed to damage.
But that is the definition. Now you
are going to put in exhaustive defini-
tion of damage and I assume that that
is also commonly understood, right?
Mr. WARNER. Mr. President, I am
not sure how common it is understood,
but it is the definition that has been
provided by the administration as au-
thoritative testimony to clarify this
point raised by the Senator from Indi-
ana and others.
Mr. NUNN. Mr. President, will the
Senator yield for a brief observation?
Mr. QUAYLE. I am glad to yield.
Mr. NUNN. Mr. President, the Sena-
tor from Indiana makes a good point
here, but it really also applies to the
word "destroy." Any time you use the
words "design to" those are the words
that activate the subjective judgment.
Whatever follows that, whether it is
the word "damage" or "destroy" it is
still subject to that subjective judg-
ment by the designers. It will be very
difficult to basically prove in a court
of law any of these things.
So you are really in a political con-
test with the Soviet Union if this sub-
ject comes up on either side. But if
you design a system to destroy that is
a subjective judgment. It can fall short
of destruction and yet be designed to
destroy. Or I suppose it is theoretical-
ly possible that it could destroy on
some occasions but not having been
designed to.
The same applies to "damage."
When you put the words "designed to"
, before the word "damage" it is subjec-
tive. Was it designed to damage or was
it designed simply to interfere?
So I would say to the Senator from
Indiana the point he is making is cor-
rect and valid. There is a subjective
judgment. It is going to be terribly dif-
ficult for us to draw the line, but the
same thing would apply if you did not
have the word "damage" and simply
has the word "destroy."
Mr. QUAYLE. I wonder if the Sena-
tor might agree with me what we are
seeing is a very difficult problem when
we start banning futuristic system,
that when we start banning futuristic
systems we are getting ourselves in
really what I call sort of never, never
land. We do not know what these sys-
tems are and that is why we have to
resort to such types of definition as
"designed" whether it is to damage or
destroy.
Would he agree with me it is very
problematic in the future we ought to
be very careful about going down the
road and banning futuristic systems
that we do not know anything about?
Mr. NUNN. I think the Senator is
correct in this area because I think it
is very difficult to draw a line here. On
the other hand, if you basically, clear-
ly and unequivocally exclude futuristic
systems, then you will give a real in-
centive to the Soviet Union to go out
and to take ground-launched cruise
missiles and to take warheads off of
them and put every conceivable device
you can imagine in the future on
them. So it cuts both ways. You have
to make a judgment whether?in my
opinion our country usually abides,
sometimes we are not perfect?but
usually we abide by the letter and the
spirit of treaties. I cannot say the
same thing for the Soviet Union. Usu-
ally based on history they push right
up to the point and sometimes they
cross that point.
So we have to have a definition here
that we understand, and I was very
careful in my statement to point out
systems that, based on our hearings
and based on the testimony, the sur-
veillance systems and several other
type systems that are not banned by
this treaty, so I think that we have a
record in the committeee and here on
the floor as to what we believe are not
covered here, and I think we are going
to have to move forward with our re-
search and development in these areas
to determine the future course of
those.
There are occasions where if you
had gotten out front?
Mr. QUAYLE. Mr. President, I ask
unanimous consent?is the time up?
The PRESIDING OFFICER. The
Senator from Maine has control of the
time and he has about a minute and a
half left.
Mr. QUAYLE. Could I ask unani-
mous consent at the time for debate
be extended for 5 minutes?
Mr. NUNN. We have extra time I
think if the Senator from North Caro-
lina will yield a couple minutes.
The PRESIDING OFFICER. The
Senator from North Carolina has
time.
Mr. HELMS. I yield an additional 5
minutes.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. NUNN. There are periods in his-
tory if arms control agreements can
get out in front of something that is
going to happen it is to the advantage
of both sides.
So I do not want to say that we
should never get out in front on future
weapons. For instance, if both sides
May 26', 1,988
had never had MIRV'd missiles, we
would not have the SS-18 threat, we
would not have some of our vulner-
ability threats we have now and we
would have a much more stable situa-
tion. But we did not get out in front of
that situation.
Let me give you another futures
problem. We are going to be struggling
with this one in conference. I do not
know how we are going to come out of
it. But a real big problem for the
United States in terms of vulnerability
would be if the Soviet Union starts
testing present trajectory tests so in-
stead of having a missile go up and
come down in a normal pattern you
have a capability for present trajecto-
ry. If they start doing that it changes
the whole vulnerability pattern, it
changes our warning time in this coun-
try, it makes the submarines off the
shore much more threatening and I
suppose they might feel the same way
if we start that kind of testing.
The House of Representatives has
passed an effort to begin curbing that
on both sides. I am not sure what my
position is gong to be.
What I am saying is we do not want
to make a statement, whatever we do
in arms control we simply open up the
future and never try to deal-with it.
- At some point we have to get out in
front of the things that are coming
down the line. Although I would say
when you get into this, it is enormous-
ly difficult.
Mr. QUAYLE. Would the Senator
agree with me when we went through
this in the Senate Armed Services
Committee, in trying to get a defini-
tion of what a weapons delivery vehi-
cle was, an original State Department
article by article analysis referred to
warhead. Certainly my understanding
of a warhead was a nuclear warhead, a
conventional warhead, and a chemical
warhead. I believe that was certainly
understood, whether it was a warhead
like that today or a warhead like that
in the future, and that was the futur-
istics issue.
But what we did was simply take
that definition and say that is not
good enough. We have to go beyond
that once these questions came up. If
they would just have stuck to the tra-
ditional word "warhead" I think we
would have had a much better under-
standing of what this treaty banned
and what it does not ban because I
think once we got down that road of
banning all the futuristics and getting
into the design, the damage or de-
stroy, or even if you left out the word
"damage" when you start getting into
design and to banning something
beyond what we know as a warhead, I
believe you are asking for trouble. I
think it is a mistake that they mad
going down that route.
I ask the Senator if he would agre
with that observation.
Mr. NUNN. I would not want
agree completely with that because
do not know I could see that far in t
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May 26, 1988
future as to which side might want to
exploit this more nearly if we had left
that out because if we left it out com-
pletely and never asked any questions
about it, then we could have had a
major dispute with the Soviet Union
moving out in this area and the United
States being reluctant to do so because
of the treaty implications.
So I think it is much better what-
ever the outcome of it we at least par-
ticipated in it and both sides are going
to be bound by the same rules.
Mr. QUAYLE. I agree both sides
need to be bound by the same rules. I
think it would certainly be possible
and do not think there is any dispute
we are bound by the Shevardnadze
letter that referred to warhead. The
State Department referred to war-
head. There is certainly a common un-
derstanding what a warhead is. A war-
head is an explosive device, whether
chemical; conventional, or nuclear.
There is where we should have rested
our case.
The other stuff you simply do not
know. If it is an explosive device that
is a weapon it is a warhead and it is
out. But we have gotten into this
thing designed to damage or destroy,
and you get into that.
Another thing is the balanced tech-
nology initiative of which the Senator
from Georgia has been the champion.
You are talking about high-powered
microwaves, talking lasers, all sorts of
things, and this type of banning will
have an impact on the balance tech-
nology initiative if we ever want to do
the ground launch because they
simply would not be able to do it.
So there are a lot of problems with
this definition.
I ask for 2 more minutes.
Mr. NUNN. I believe the Senator
makes a very good point. There are a
lot of problems with this definition.
We are going to have some of them in
the future. I say, though, in this area
there are a, lot of problems wherever
you try to draw that line. I think if
you draw the line simply on warheads,
given the political situation we face in
NATO, and we have said to the Soviet
Union, OK, clear line, nothing but
warheads, future weapons are OK, we
might have developed those weapons
in this country, and we might even
have an edge. I think we do in the
technological development of some of
those weapons. What happens when it
comes time to deploy them, though?
We went through one terrible diffi-
culty in deploying Pershing II missiles
and other missiles. What kind of re-
percussions would there be within the
NATO alliance? We face some political
problems we have to deal with here,
oo.
Mr. QUAYLE. I think the NATO
llies and particularly the Pershing II
d the ground launch cruise missile,
e problem there from a political
int of view they were nuclear. We
talking about conventional.
think NATO is going to welcome
ventional weapons that are going
CONGRESSIONAL RECORD ? SENATE S 6715
to raise that nuclear threshold and
become less dependent on nuclear
weapons.
This, as the Senator pointed out, is
to our advantage, and what we have
done is conceded something that is to
our advantage from a technological
point of view in this arms control
agreement which is more of a conven-
tional arms control agreement than it
is one dedicated to getting rid of nucle-
ar weapons.
That is my problem.
Mr. NUNN. Mr. President, I must
say I have many of the same concerns
the Senator from Indiana articulated
this morning. He does make a good
point on a number of concerns.
The PRESIDING OFFICER. The
time has expired.
Mr. HELMS. Mr. President, I yield
myself such time as I may require.
First of all, in the event it is needed
to clarify the unanimous-consent re-
quest earlier, I identified the cospon-
sors of the amendment, and I want to
make it clear that the cosponsors I
identified are being associated with
the amendment which I shall subse-
quently offer with reference to a dec-
laration. I ask unanimous consent, if
such a unanimous consent is required,
that that be in order.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. HELMS. Mr. President, what we
have heard here underscores what
some of us have been trying to say all
along?that haste makes waste. We
have heard the very erudite discussion
between the able Senator from Indi-
ana, Mr. QUAYLE, and the distin-
guished Senator from Georgia, Mr.
Nurm, which ought to be explored
longer on this floor than it will be. I
commend the Senator from Indiana
for his knowledge and his study of this
matter and his eloquent discussion of
it.
The problem is, from the very begin-
ning, we have been trying to make a
silk purse out of a sow's elan This
treaty is fatally flawed. That is why,
standing alone early on, I tried to raise
a hand and say, "Wait a moment. Let's
think about it." We had a plethora of
administration witnesses coming up
contradicting each other, making
statements implying that this treaty
was perfect. They took the position at
the very outset that we must not have
one amendment to the treaty. And we
have not had. They took that position
because they were scared to death to
go back to Mr. Gorbachev and say,
"Look, we fouled up." They wanted a
treaty at any cost.
Then came the cloture motion which
was filed by the distinguished majori-
ty leader, Mr. BYRD. I have known
Senator BYRD for a long time, and I re-
spect him. I have no notion whatso-
ever that Senator Byan would have
filed that cloture motion had it not
been for that excursion to Moscow by
the President, which, as much as any-
thing else, is going to be a PR trip. So
the Senate has fallen in line, and that
is all right. I did what my conscience
told me to do. I did the best I could.
But when the cloture motion was
filed, the ballgame was over. One way
or another, we could have fought it
out and kept Senators here on Sunday
and Monday, but that is no way to op-
erate around this place.
So now I'm trying to salvage what I
can. We made some headway in that
regard with respect to the resolution
of ratification, but not to the treaty,
not to the treaty text. And there is a
difference.
I am a cosponsor of the Nunn-
Warner amendment to which I have
sent to the desk a second-degree
amendment. I will discuss the second-
degree amendment momentarily, but
first let me discuss, if I may, the un-
derlying amendment by Mr. Nuans and
Mr. WARNER.
I think it is absolutely essential that
we remember that, while the SALT II
Treaty did not come before the full
Senate, 4t was considered and ap-
proved by the Committee on Foreign
Relations. History repeats itself. Thus,
we have an important parallel to the
committee's consideration of that
treaty which seems appropriate to
apply to this treaty, the INF Treaty.
As a part of the very first day's
markup of the SALT II Treaty, the
Foreign Relations Committee added
explicitly to the treaty text the
"agreed statements and common un-
derstandings" that had been signed at
Vienna on June 18, 1979.
There was that old process that I
just alluded to?trying to make a silk
purse out of a sow's ear. It cannot be
done.
The same issue arose then that has
arisen now: What is the precise legal
status of the "extra-treaty" represen-
tations, documents and so forth, sup-
posedly agreed to by the two parties? I
had one heck of a time getting the
State Department to fess up on vari-
ous matters, including secret ex-
changes that still have not been made
public to the American people.
Well, let us go back to 1979 and the
SALT II Treaty. The Foreign Rela-
tions Committee that year unanimous-
ly adopted a so-called category III?
that means binding language?catego-
ry III amendment to the treaty provid-
ing "That the agreed statements and
common understandings associated
with the treaty and protocol signed on
June 18, 1979, with the treaty are of
the same force and effect as the provi-
sions of the treaty itself and the proto-
col."
All right. Now, the State Depart-
ment people came up here back then
and contended, just as the current rep-
resentatives have done with respect to
this INF Treaty, that such an amend-
ment to the treaty was not really nec-
essary. The State Department claimed
that the agreed statements and
common understandings were equally
binding on the Soviets as the treaty
text and protocol. Just so, Secretary
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S 6716 CONGRESSIONAL RECORD ? SENATE
Shultz and Ambassador Kampelman
claimed back on May 16, just a few
days ago, that the diplomatic note and
minute are equally binding on the So-
viets as are the treaty text and the
protocols, together with the memoran-
dum of understanding.
The point is, Mr. President, in order
to make explicit the incorporation of
the Soviets' assurances in SALT II,
the Foreign Relations Committee, in
1979, adopted, by a unanimous vote,
the amendment which I read into the
RECORD a minute ago.
But I think the purpose of such an
amendment was eloquently stated?
and this was 1979, SALT II?by the
distinguished Senator from Maryland,
[Mr. SARBANES]. Let me read you what
he said.
It seems to me that one of our responsibil-
ities in doing a craftsmanlike and profes-
sional markup with respect to these docu-
ments is to clarify in those instances in
which we think clarification is necessary.
There have been a number of instances in
which it has been asserted that there is
agreement with respect to certain meanings,
Sand there may be some doubt about that
Well, that was an understatement,
but the Senator was exactly correct.
I would interject that the present
situation is precisely the same. That is
a reason I have been here on this floor
for the last 10 days. That is the reason
I did what I could in the Foreign Rela-
tions Committee.
I say to you, Mr. President, that Sec-
retary Shultz and Foreign Minister
Shevardnadze would not have had to
deal with these nine verification issues
and to the futuristic issue if there had
been a perfect agreement about the
meaning of these provisions in the
treaty.
Senator SARBANES continued in an el-
oquent fashion. He said:
One of the ways to remove this doubt is,
of course, to go through the process which
we are not going through with respect to
these matters.
Now. I do not contend that the Soviets
have an entirely different view of this par-
ticular issue that is now before us. In fact, it
has been asserted to us that they in fact
agree that these statements and under-
standings are legally binding as is the
treaty, but they are not part of the treaty.
As part of doing a craftsmanlike job, we
are now going to make them a part of this
treaty through this reservation. We will
deal with other issues of that sort, I am
sure, later. Some people will propose
changes that do not represent the clarifica-
tion of supposed understanding between the
parties, but may in fact involve a matter in
which the proposal clearly is changing an
understanding reached in the treaty. At
that point, we will have to judge that ac-
cordingly.
I do not make of this what I think we
would have to make of a proposal of that
latter sort, but it seems to me this is an es-
sential part of doing a good job here in the
committee." [October 15, 1979, page 18, Part
6 (Markup) of SALT II Treaty Hearings
before the Committee on Foreign Rela-
tions.]
Mr. HELMS. Parenthetically, I note
that the only opposition to the 1979
amendment was that Senator LUGAR,
the distinguished Senator from Indi-
ana, contended that the amendment
did not do enough to cure the obvious
defects in the SALT II Treaty.
Senator LUGAR said:
Let us call it for what it is. It is a way of
covering yourself for a pro-SALT II vote.
That is what has been going on
around here. Senators want to cover
their backsides because they nervously
anticipate that just a few years down
the road they are going to regret this
bum's rush to ratify this sow's ear.
Senator Percy also noted the impor-
tance of clarifying such issues by
amendment, saying:
I think it establishes the precedent and
procedure for understandings, statements,
and so forth that will be considered an inte-
gral part of the treaty and which really go
to the heart of it. . . They are so essential
that I could not possibly vote for the treaty
without them. As during the Panama Canal
debate we did not accept the joint state-
ment made at the White House; rather, we
made the statement a part of the treaty
Itself.
I believe that satisfied some of us that it
was binding upon both parties. So, I think
this procedure is an essential and necessary
procedure. . . . "
Senator Percy reminded the com-
mittee of a good point in 1979 which
bears repeating in 1988. The Senate
did take action in the 1978 consider-
ation of the Panama Canal Treaties to
incorporate various statements into
the text of the treaty. It did not make
any difference to Torrijos and Nor-
iega. They paid no attention whatso-
ever to the two treaties giving away
the Panama Canal.
The same approach was necessary in
1979 during the Foreign Relations
Committee deliberations on the SALT
II Treaty.
I submit, to the point of being re-
dundant and repetitive, that this is
what we ought to have done in the
first place. We should have taken our
time. When the President took off
from Andrews Air Force Base yester-
day, this Senate ought to have been
engaged in consideration, careful con-
sideration of the implications of this
treaty.
But, no, there came the rush. I do
not think Senator BYRD really wanted,
in his heart of hearts, to shut off
debate and to shut off the possibility
of further amendments except for the
time pressures with respect to the
President's trip. I shall forever be
grateful to BOB BYRD for his constancy
in protecting the meaning and the
purpose and the traditions of this
Senate. But he has done what he did
to accommodate the President of the
United States and that is fine.
So here we are. DANNY QUAYLE made
excellent sense in his discussion with
the distinguished Senator from Geor-
gia [Mr. Numv]. We ought to have had
a day or more, whatever is necessary,
to discuss this point because I am
afraid it is going to come back to
haunt us because we did not do it
right. The sow's ear is still a sow's ear.
It should be clear to all that the
kind of approach we have taken is
May 26, 1988
unwise. But that is a fait accompli. It
is a proper and appropriate decision by
the Senate every time we have a
treaty to make certain that our consti-
tutional role in granting advice and
consent is taken seriously. If we are
not going to take it seriously, take it
out of the Constitution. Let this
Senate never be a rubber stamp for
another President of the United
States.
Obviously this treaty lacked the per-
fection claimed for it by the steady
stream of advocates of the treaty who
came before the Foreign Relations
Committee day after day and who
worked assiduously to make sure that
no amendment to the treaty text
would be accepted. And, of course, it
was not. Of -course, the media hooted
and hollered: Oh, these few conserv-
atives were beat down, they were over-
whelmed yesterday by an enormous
vote. Well, we were. We were.
But history is going to decide and
disclose who was right and who was
wrong.
Because the same media that have
been so gleefully engaged in a putting
down of admittedly a few Senators, 10
years ago were saying: Let us go with
the give-away of the Panama Canal.
They were wrong then and they are
wrong now. Our job in the Senate is to
do the best we can to rectify as many
errors as we can. And that brings me
to the second-degree amendment
which I have offered to the underlying
amendment. I want to say a few words
about that and I will yield the floor.
The second-degree amendment
which I filed corrects a number of ad-
mitted errors, deficiencies, mistakes in
the treaty text that have been ac-
knowledged even by the State Depart-
ment and identified by the State De-
partment. The same crowd that says:
Oh, this treaty is perfect. That is all
we heard this entire year thus far. But
now we know after months of declara-
tions about the perfection of this
treaty that it was as full of holes as a
piece of Swiss cheese.
So modifications are imperative in
order to make binding the clarifica-
tions with regard to the future risks
Issue, and some of the verification pro-
cedures on which the Soviets were at-
tempting to renege, even before the
treaty enters into force.
I might say, Mr. President, paren-
thetically, because it is relevant, that
driving to work this morning, early
this morning, I heard a report that
President Reagan is going to be denied
the opportunity of going to that mon-
astery. The Soviets decided it would be
bad PR for them. So the Presiden
and his party are going to have t
make arrangements to get togethe
with religious groups somewhere el
at some other time. But this is the w
Soviets operate, and I do not kn
how to get the point across that y
cannot trust them.
They are going to pursue t
course whether the chairman?equ
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
lent of chairman?of the Communist
Party, the Soviet Union, is the front
man or somebody else. They have not
changed, and I do not think they are
going to change,
At any rate, this amendment, this
second-degree amendment will make
corrections in the treaty, including its
memorandum of understanding and
protocols for mistakes that were made
in the unseemly haste to complete this
treaty by the December summit?for
the signing on December 8.
If they had spent a little more time
they might have made only two dozen
errors. As it turns out, they have made
50 or 60. I have lost count.
As further evidence of the haste, the
initial corrections?get this, Mr. Presi-
dent?the initial corrections identified
by the 'State Department and permit-
ted by the State Department were
made known in January. And now
they have sent up some corrections to
the corrections. Perhaps before it is all
over, there will be corrections to the
corrections to the corrections.
Hopefully; the State Department
has it right this time. I hope they did
a little better than they did in dealing
with Noriega, for example. What a
travesty that has been. And I !night
say parenthetically again, because I
think it is relevant to the big picture,
that if there had just been the deci-
sion to work with and accommodate
the opposition to Mr. Noriega by al-
lowing the opposition access to facili-
ties owned by the United States of
America, this problem in Panama
would probably be resolved by now.
We will never know.
But what we did was say, "Oh, no,
oh, no; we cannot allow you access to
our facilities."
And the same sort of message would
go to freedom fighters in Hungary.
And look what this Congress is doing
to the freedom fighters in Central
America.
So you go on and on and on, like
Termyson's brook.
The State Department was reluctant
to admit all of these errors, to identify
them or notify the Senate of them.
But we finally obtained a copy of the
corrigendum exchanged with the Sovi-
ets on May 21, and I received it, Mr.
President, last night, May 25. It has
been there all the time.
I do not think there is any objection
whatsoever to the second-degree
amendment, and I urge the adoption
of it.
I inquire of the Chair if the yeas and
nays have been obtained on the under-
lying amendment?
The PRESIDING OFFICER. They
have not.
Mr. HELMS. I ask for the yeas and
nays.
The PRESIDING OFFICER. Is
here a sufficient second?
Tkiere is a sufficient second.
The yeas and nays were ordered.
Mr. HELMS. Mr. President, one fur-
ther thing. Mr. President, am I recog-
nized?
The PRESIDING OFFICER. The
Senator from North Carolina.
Mr. HELMS. I ask unanimous con-
sent that the English language text of
the notes of May 21, to which I have
just alluded, done at Vienna and
Moscow be printed in the RECORD at.
this point.
_There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
NOTES OF MAY 21, 1988
The Ministry of Foreign Affairs of the
Union of Soviet Socialist Republics presents
its compliments to the Embassy of the
United States of America and has the honor
to acknowledge receipt of the Embassy's
Note of May 21, 1988, and Annex thereto
containing notification of corrections to
data submitted by the American side in ac-
cordance with the Memorandum of Under-
standing Regarding the Establishment of
the Data Base for the Treaty Between the
Union of Soviet Socialist Republics and the
United States of America on the Elimina-
tion of Their Intermediate-Range and
Shorter-Range Missiles of December 8, 1987.
The Soviet side takes note of the aforemen-
tioned notification.
The Ministry also has the honor to advise
the Embassy that the data submitted by the
Soviet side in accordance with the Memo-
randum of Understanding Regarding the
Establishment of the Data Base for the
Treaty Between the Union of Soviet Social-
ist Republics and the United States of
America on the Elimination of Their Inter-
mediate-Range and Shorter-Range Missiles
will be provided with corrections contained
in the Annex to this note.
The Ministry further has the honor to
advise that the Soviet side agrees to the pro-
posal of the American side, contained in the
Embassy's Note, to enter corrections to the
text of paragraph I of section XI of the Pro-
tocol Regarding Inspections Relating to the
Treaty Between the Union of Soviet Social-
ist Republics and the United States of
America on the Elimination of Their Inter-
mediate-Range and Shorter-Range Missiles
for the end of the third sentence of that
paragraph to read: ". . . pursuant to para-
graph 11 of Section VI of this Protocol."
The Soviet side shares with the American
side the understanding that the aforemen-
tioned Note of the Embassy and the Reply
Note of the Ministry shall constitute a cor-
rection of the text of the Treaty.
The Ministry avails itself of this occasion
to renew to the Embassy the assurance of
its highest consideration.
Seal of the Ministry,
Moscow, May 21, 1988.
CORRECTIONS TO DATA
Submitted by the Soviet side in accord-
ance with the Memorandum of Understand-
ing Regarding the Establishment of the
Data Base for the Treaty Between the
Union of Soviet Socialist Republics and the
United States of America on the Elimina-
tion of Their Intermediate-Range and
Shorter-Range Missiles
1. In paragraph 2(a)(ii) f2(b)(ii) in Eng-
lish-language text] of Section IV of the
Memorandum of Understanding, the geo-
graphic coordinates for the V.I. Lenin Pe-
tropavlovsk Heavy Machine Building Plant,
Petropavlovsk, should be 54?54'20" N and
69?0958" E.
2. In paragraph 2(a)(1) i2(b)(i) in English-
language text] of Section III and in para-
graph 2(a)(i) I2(b)(i) in English-language
S 6717
text] of Section IV of the Memorandum of
Understanding , the geographic coordinates
for the Barrikady Plant, Volgograd, should
be 48?4650" N and 44?35'44" E.
3. In paragraph 2(a)(i) [2(b)(i) in English-
language text] of Section III of the Memo-
randum of Understanding, the Elimination
Facility at Aral'sk with the coordinates
46?50 N and 61?18' E should be changed to
the Elimination Facility at Kapustin Yar
with the coordinates 48?46' N and 45?59' E.
Moreover, in the Protocol Regarding In-
spections Relating to the INF Treaty, para-
graph 7 of Section I regarding points of
entry for the Union of Soviet Socialist Re-
publics should read "Moscow or Ulan Ude."
EMBASSY OF THE
UNITED STATES OF AMERICA,
Moscow, May 21, 1988.
No. MFA/130/88.
The Embassy of the United States of
America presents its compliments to the
Ministry of Foreign Affairs of the Union of
Soviet Socialist Republics, and has the
honor to refer to the Treaty between the
United States of America and the Union of
Soviet Socialist Republics on the Elimina-
tion of their Intermediate-range and Short-
er-range Missiles, with Memorandum of Un-
derstanding and Protocols (the Treaty).
signed at Washington December 8, 1987.
The Embassy proposes that the correc-
tions set forth in the attachment to this
note be made in the text of the Treaty. The
Embassy further proposes that this note
and the Ministry's note in reply accepting
the corrections shall constitute a correction
of the text of the Treaty.
JOHN M. JOYCE,
Minister-Counselor.
? -
ATTACHMENT TO NOTE No. MFA/130/88
The following corrections should be made
In the text of the Treaty:
1. In the Memorandum of Understanding
(MOU) regarding the establishment of a
data base for the Treaty,- Section II, para-
graph 1, concerning intermediate-range mis-
siles and launchers, for the United States:
the number of non-deployed missiles should
read "226," the aggregate number of de-
ployed and non-deployed missiles should
read "695," and the aggregate number of
second stages should read "238."
2. In the MOU, Section III, paragraph
1(A)(II), for missile operating base Wuesch-
heim?the geographic coordinates should
read, in the pertinent part, 007 25 40 E., and
the number of launchers should read "21."
3. In the MOU, Section HI, paragraph
,2(A)(I), for launcher production facilities:
Martin Marietta?the geographic coordi-
nates should read, in the pertinent part, 39
19 N. For missile storage facilities: Pueblo
Depot activity?the number of missiles
should read "120"; Redstone Arsenal?the
number of training missile stages should
read "0"; Weilerbach?the number of mis-
siles should read "9." For launcher storage
facilities: Redstone Arsenal?the number of
training missile stages should ,read "4." For
launcher repair facilities: Redstone Arse-
nal?the number of training missile stages
should read "20"; Ft. Sill?the number of
launchers should read "1"; Pueblo Depot ac-
tivity?the geographic coordinates should
read, in the pertinent part, 38 17 N. For
training facilities: Ft. Sill?the number of
training missile stages should read "'76."
4. In the MOU, Section IV, paragraph
2(A)(I), for missile production facilities:
Longhorn Army Ammunition Plant?the
number of missiles should read "8" and the
number of training missile stages should
read "1." For launcher production facilities:
Martin Marietta?the geographic coordi-
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S 6718 CONGRESSIONAL RECORD ?SENATE
nates should read, in the pertinent part, 39
19 N. For missile storage facilities: Pueblo
Depot activity?the number of missiles
should read "162" and the number -of train-
ing missile stages should read "63." For mis-
siles, launchers, and support equipment in
transit the number of missiles should read
"0" and the number of training missile.
stages should read "6."
5. In the MOU, Section VI, paragraph
1(A)(IV) for the BGM 1090, the maximum
diameter of the missile should read "0.52." '
6. In the MOU, Section VI, paragraph
1(B)(I), for the BGM 1090 launcher the
maximum length should read "10.80" and
the maximum height should read "3.5."
7. In the MOU, Section VI, paragraph
r(D)(I) for the BGM 1090 launch canister
the maximum length should read "6.97" and
the maximum diameter should read "0.54."
8. In the protocol regarding inspections,
Section XI, paragraph 1, the reference to
"paragraph 10 of Section VI of this proto-
col" should read "paragraph 11 of Section
VI of this protocoL"
EMBASSY OF THE
UNITED STATES OF AMERICA,
Moscow, May 21, 1988.
No. MFA/131/88.
The Embassy of the United States of
America presents its compliments ? to the
Ministry of Foreign Affairs of the Union of
Soviet Socialists Republics, and has the
honor to refer to the Ministry's note of May
21, 1988. On behalf of the Government of
the United States of America, the Embassy
accepts for information the items presented
by the Soviet side, as set forth in the Minis-
try's note.
JOHN M. JOYCE,
Minister-Counselor.
VIENNA, May 21, 1988.
The Government of the United States of
America refers to the Treaty Between the
United States of America and the Union of
Soviet Socialist Republics on the Elimina-
tion of Their. Intermediate-Range and
Shorter-Range Missiles, signed at Washing-
ton, December 8, 1987, and proposes that
the corrected site diagrams attached to this
Note replace the respective site diagrams of
the United States of America, as appended
to the Memorandum of Understanding.
The Government of the United States of
America further proposes that this Note
shall constitute a correction to those site
diagrams of the United States of America
appended to the Memorandum of Under-
standing.
FRANK A. PART'LOW, Jr.,
Brigadier General,
U.S. Army.
VIENNA, May 21, 1988.
The Government of the United States of
America refers to the Note of the Govern-
ment of the Union of Soviet Socialist Re-
publics of May 21, 1988, and accepts for in-
formation the corrections presented by the
Government of the Union of Soviet Socialist
Republics to the respective site diagrams of
the Union of Soviet Socialist Republics ap-
pended to the Memorandum of Understand-
ing, as set forth in the aforesaid Note.
FRANK A. PARTLOW, Jr.,
Brigadier General,
U.S. Army.
VIENNA, May 21, 1988.
The Government of the Union of Soviet
Socialist Republics refers to the Treaty Be-
tween the Union of Soviet Socialist Repub-
lics and the United States of America on the
Elimination of Their Intermediate-Range
and Shorter-Range Missiles, signed at
Washington on December 8, and proposes
that the corrected site diagrams attached to
this Note replace the corresponding site dia-
grams appended by the Union of Soviet So-
cialist Republics to the Memorandum of Un-
derstanding.
The Government of the Union of Soviet
Socialist Republics further proposes that
this Note constitute a correction of the rele-
vant site diagrams appended by the Union
of Soviet Socialist Republics to the Memo-
randum of Understanding.
Attachments: As stated
Signature,
M.N. STREL'ISOV,
Chief Counsellor,
U.S.S.R. Ministry of Foreign Affairs.
VIENNA, May 21, 1988.
The Government of the Union of Soviet
Socialist Republics refers to the Note of the
Government of the United States of Amer-
ica of May 21, 1988, and takes note of the
corrections submitted by the Government
of the United States of America to the site
diagrams appended by the United States of
America to the Memorandum of Under-
standing, as set forth in the afore-men-
tioned Note.
Signature,
M.N. STREL'TSOV,
Chief Counsellor,
U.S.S.R. Ministry of Foreign Affairs.
Mr. HELMS. I thank the Chair, and
I yield the floor.
Mr. WARNER addressed the Chair.
The PRESIDING OVVICER. The
Senator from Virginia.
Mr. HELMS. Parliamentary inquiry.
What is the matter before the Senate
at this time?
The PRESIDING 0.F.FICER. The
matter before the Senate at this time
is the amendment offered by the Sen-
ator from North Carolina, a second-
degree amendment.
Mr. HELMS. And the time remain-
ing?
The PRESIDING OFFICER. The
Senator from North Carolina has re-
maining about 8 minutes. The Senator
from Maine has 2 minutes.
Mr. WARNER. Mr. President, I
wonder if the distinguished Senator
from Noth Carolina would grant the
distinguised Senator from Maine and
myself such time as we may require to
have a colloquy?
Mr. HELMS. I yield the remainder
of my time to the Senator from Vir-
ginia to be controlled as he so desires.
Mr. WARNER. Mr. President, I yield
to the Senator from Maine.
Mr. COHEN. I thank the Senator.
First, Mr. President, let me respond
briefly to the comments made by my
colleague from North Carolina. In my
judgment, there has never been any
assertion that this treaty is perfect.
No one that I have listened to has in-
dicated this is an absolutely perfectly
crafted treaty. There is not a treaty
perfectly crafted in existence, nor is
there any piece of legislation ever
adopted by this body or the other that
is perfect in its provisions.
The notion that somehow it is
flawed I think we would all concede.
This treaty is flawed like other trea-
ties are flawed, but, in my judgment, it
is not fatally flawed, as the Senator
from North Carolina has suggested.
, May 26, 1988
It has also been suggested that every
other Senator, save a few, have abdi-
cated their senatorial responsibilities
by simply joining or caving in to Presi-
dent Reagan's public relations excur-
sion to Moscow?sort of a magical mys-
tery tour that he is taking us all along
with him on.
In my judgment, the Members, cer-
tainly those on the other side of the
aisle, are not particularly interested in
simply promoting President Reagan's
public relations efforts. I believe they
are equally dedicated, as the President
and those of us on this side of the aisle
who support this treaty are, to reduc-
ing a potential area of conflict and to
try to reduce the size of our nuclear
aresenals.
To suggest somehow everybody else
in this Chamber simply wants to join a
public relations campaign I think is
not supported by the facts.
The third point I would make is that
I serve on the Intelligence Committee
along with Senator WARNER. He also
serves on the Armed Services Commit-
tee, as do I, along with Senator NUNN
and others. We have held hearing
after hearing in the Intelligence Com-
mittee, the Armed Services Commit-
tee, and the Foreign Relations Com-
mittee. It is not as if this particular
treaty has not been given very close
scrutiny.
Indeed, there were deficiencies and
flaws, and we tried to identify them
and correct them. I believe we have
done so. Speaking on behalf of myself,
I feel I have carried out thy obligations
under the Constitution, and I certain-
ly do not wish to accede to the notion
that I and others have caved in and
simply abdicated that measure of re-
sponsibility.
Now to the amendment, if I might
address the Senator from Virginia,
with whom I have prepared a colloquy.
The Helms amendment is quite differ-
ent from the underlying Nunn-
Warner-Boren-Cohen amendment in
that it refers to two exchanges of
notes on technical matters. Such ex-
changes of technical corrections may
continue, and quite possibly will con-
tinue, in the future. My understanding
Is that such future technical changes
will not require the advice and consent
of the Senate, nor will the regular
data updates. Is that the understand-
ing of the Senator from Virginia?
Mr. WARNER. Mr. President, the
Senator from Maine is correct. The
purpose of the Helms amendment is to
give the full force and effect of the
treaty to the note of May 21, 1988.
Those notes constitute the corrected
baseline in effect on which the Sen-
ate's advice and consent to the ratifi-
cation of the treaty is based.
The regular data updates and fur
ther exchanges of technical corr
tions, as envisioned by the treat
would not require the advice and co
sent of the Senate, although th
would, of course, be provided 6 t
Senate.
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May 26, 1988
CONGRESSIONAL RECORD ? SENATE
Mr. COHEN,- I thank the Senator
from Virginia. Just to draw the dis-
tinction with the first-degree amend-
ment, any changes to the diplomatic
notes or the agreed minute referenced
in the underlying Nunn-Warner-
Boren-Cohen amendment would re-
quire the advice and consent of the
Senate. As to the second-degree
amendment, it requires notification,
but not advice and consent. In this
regard, I note that the authoritative
testimony of Ambassador Glitman to
the Armed Services Committee con-
firms that there can be no change in
the substantive obligations under the
treaty without the advice and consent
of the Senate.
Mr. HELMS. Will the Senator yield
on that point for just 30 seconds?
Mr. WARNER. Yes.
Mr. HELMS. Mr. President, in the
interest of time, and I hope no inter-
ruption will be shown in this colloquy.
Mr. WARNER. In that case, let me
indicate?
Mr. HELMS. I will finish in 20 sec-
onds. I will ask unanimous consent
that my comment about the colloquy
appear immediately after that.
Mr. WARNER. Mr. President, while
we have the distinguished Senator
from North Carolina on the floor, is it
this Senator's understanding that it
would be the wish of the Senator from
North Carolina or he would concur in
the Senate voice voting the amend-
ment in the second degree, and we
would then have a rollcall vote on the
underlying amendment as proposed by
Mr. NUNN, myself, Mr. BOREN, Mr.
COHEN, and Mr. HELMS?
Mr. COHEN. If the Senator will
yield, what I am suggesting, I am will-
ing to accept the second-degree
amendment provided it is predicated
upon the understanding that the Sen-
ator from Virginia and I have just es-
tablished?that is, that technical
changes in data information would not
require advice and consent of the
Senate; rather, they would require
simply notice to the Senate. That is
the basis on which I recommend we
accept the second-degree amendment.
Mr. HELMS. If the Senator will
yield.
Mr. WARNER. Mr. President, I yield
to the Senator from North Carolina.
Mr. HELMS. For the purposes of
legislative history to my response to
the colloquy, let the record speak for
itself in that regard.
Mr. WARNER. Mr. President, the
Senator from Maine and I do not have
the benefit of the knowledge of the re-
sponse of the colloquy. I ask my col-
league from Maine as to how we can
answer his question?
Mr. COHEN. I suggest the basis for
accepting, indeed endorsing, the
econd-degree amendment would be
redicated upon the colloquy that the
enator from Virginia and the Senator
om Maine have just had; notwith-
anding any information put into the
cord inconsistent with that colloquy.
recommendation is that the repre-
sentations the Senator from Virginia
and I have just made would be the
basis for approval of the second-degree
amendment.
Mr. WARNER. Mr. President, that is
the understanding the Senator from
Virginia proceeded on when he en-
tered into colloquy. I note the pres-
ence on the floor of the Senator, from
North Carolina. It seems to me before
we ask the Senate to voice vote this
amendment, we should have some
clarification.
Mr. HELMS. I want to hear the re-
mainder of the colloquy. I did not real-
ize I was yielding for that purpose.
Mr. WARNER. Mr. President, the
colloquy that the Senator from Maine
and I entered into was in accordance
with a prepared text. My understand-
ing is that text was prepared with the
concurrence of the Senator from
North Carolina. Then the Senator
from Maine added another perspective
to it. I leave it to the Senator from
Maine to respond to his question. This
Senator from Virginia has given the
prepared text.
Mr. HELMS. All I am saying, if the
Senator will yield.
Mr. WARNER. Yes.
Mr. HELMS. Is that the record
ought to contain both sides. We are
making legislative history here. I am
perfectly content for the record, as it
will stand, to be examined and which-
ever one of us are correct suits me
fine.
Mr. COHEN. If the Senator will
yield, I do not know what the other
side referred to is. I do not know what
the other colloquy is.
Mr. WARNER. Mr. President, I do
not know what the other colloquy is.
That is the dilemma we seem to be
faced with. It seems to me before we
ask the Senate to voice vote this
matter, we ought to have some clarifi-
cation. Does the Senator agree or dis-
agree?
Mr. HELMS. Why not finish the col-
loquy?
Mr. WARNER. Mr. President, this
Senator has finished the colloquy. Has
the Senator from Maine finished?
Mr. COHEN. I have completed my
statement.
Mr. WARNER. The Senators from
Maine and Virginia have completed
their statements.
Mr. HELMS. Mr. President, how
much time remains?
The PRESIDING OFFICER (Mr.
SHELBY). Two and a half minutes.
Mr. HELMS. Two and a half. Mr.
President, I ask unanimous consent
that it be in order for me to suggest
the absence of a quorum so that we
can work this whole matter out even if
it takes 3 or 4 minutes in addition to
the 21/2 minutes.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. HELMS. I thank the Chair. I
suggest the absence of a quorum.
? The PRESIDING OFFICER. The
clerk will now call the roll.
S 6719
The bill clerk proceeded to call the
roll.
Mr. PELL. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. PELL. Mr. President, I rise
merely to congratulate Senators
NUNN, WARNER, BOREN, COHEN, and
HELMS on this amendment.
It grew out of a conversation yester-
day morning, and there is a general
agreement that the three different
viewpoints that were represented here,
three different thoughts could be inte-
grated into a single amendment. They
worked hard at it and it is being done.
I think it is a good piece of work, and
it has helped move along the whole
concept of the treaty. It is an example,
too, of where our colleagues try to see
what can be done in a positive way,
rather than examining what is wrong
in a negative way. For that reason, I
know that this amendment will pass in
very fine form. I. suggest the absence
of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The bill clerk proceeded to call the
roll.
Mr. HELMS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The Senator from Rhode Island con-
trols the only time left. The Senator
from Rhode Island has approximately
10 minutes left.
Mr. PELL. Mr. President, I yield to
the Senator from North Carolina as
much time as he wants.
Mr. HELMS. Mr. President, Two
minutes on the outside.
The PRESIDING OFFICER. The
Senator is recognized for 2 minutes.
Mr. HELMS. I thank the Chair. I
thank the distinguished Senator from
Rhode Island.
Mr. President, I simply wanted to
add my own comments at the end of
the colloquy between the distin-
guished Senator from Maine and the
distinguished Senator from Virginia.
We have consulted about this because
I think it is an important point. I
think they agree.
Mr. President, I would like to follow
the earlier colloquy between the two
Senators in the RECORD because it is
legislative history of equal weight and
significance.
The other side is that the colloquy
may not, of course, overturn the Con-
stitution of the United States. The
treaty text may not be changed after
the Senate has given its advice and
consent in terms of domesticolaw, not
even for so-called technical modifica-
tions. Senator COHEN is going to note
certain delegations in just a moment.
However, for purposes of international
law, so-called minor, nonsubstantive,
purely technical corrections are made
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S 6720 CONGRESSIONAL RECORD ? SENATE May 28, 1988
on occasion by the exchange of notes
or Other methods.
The Senate, in the judgment of this
Senator, and I believe all Senators,
must zealously guard its duty and its
prerogatives to ensure that these pro-
visions of international law do not
become loopholes by the Constitution
and the role of the Senate in making
treaties which could be thereby sub-
verted. -
That is the end of my contribution
to the colloquy.
Mr. WARNER addressed the Chair.
The PRESIDING OFFICER. The
Senator from Rhode Island has the
time.
Mr. PELL. Mr. President, I yield
such time as he may desire to the Sen-
ator from Virginia.
Mr. WARNER. Thank you, Mr.
President.
Mr. President, I yield such time to
the Senator from Maine as he may re-
quire.
Mr. COHEN. I thank the Senator
from Virginia.
Mr. President, let me say there is no
other side to the colloquy. There can
be no two sides or any difference in in-
terpretation of what we are trying to
establish. Otherwise, there is no agree-
ment, and it would force a vote on the
measure. There is one understanding,
and I believe it has been correctly
stated by the Senator from Virginia,
the Senator from Maine, and the Sen-
ator from North Carolina as to one
colloquy, as such. They are not in con-
tradiction. It is correct to say that the
treaty text may not be changed with-
out the advice and consent of the
Senate. That is categorical, and there
is no disagreement.
But as the Armed Services Commit-
tee pointed out on page 25 of its
report, the section "Amendment to
the protocols":
Once the Treaty enters into force, amend-
ments to the Treaty can be made only with
the consent of the Senate (Articles XVI and
XVII). However, the protocols permit
changes without a treaty amendment on
"such measures as may be necessary to im-
prove the viability and effectiveness" of the
Protocols.
I ask unanimous consent that the
full text of the Armed Services Com-
mittee report's section "Amendments
to the protocols" be printed in the
RECORD at this time.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
11. AMENDMENTS TO THE PROTOCOLS
Amendments to the INF Treaty generally
require the advice and consent of the
Senate, but certain changes may be made in
the Protocols without the Senate's consent.
At the Committee's hearings, questions
were raised as to what types of changes
could be made without the approval of the
Senate. '
Once the Treaty enters into force, amend-
ments to the Treaty can be made only with
the consent of the Senate (Articles XVI and
XVII). However, the Protocols permit
changes without a treaty amendment on
"such measures as may be necessary to im-
prove the viability and effectiveness" of the
Protocols. The Article-by-Article Analysis
describes such modifications to the Proto-
cols as "technical changes."
At the Committee's hearing on February
23, 1988, Ambassador Glitman assured the
Committee that the procedure for such
technical changes applies only to the Proto-
cols and cannot be used to alter any other
provision of the Treaty.
With respect to changes in the Protocols,
he was asked to describe the difference be-
tween a "technical" change (i.e., one that
can be accomplished without the Senate's
consent) and other changes to the Protocols
(which require an amendment to the Proto-
cols and the Senate's consent). He respond-
ed: "The question is [whether] you have
changed a substantive obligation under the
Treaty, and such a change under the Treaty
would clearly require an amendment." He
added: "We are going to have to work with
the ? ? ? the Congress to ensure in the
future that if there are changes, Congress
will know that they are on their way and
that they are either technical or a major ob-
ligational change." He confirmed that
changes made without the consent of the
Senate would be reported to Congress under
the Case Act.
Ambassador Glitman assured the Commit-
tee that, with the exception of "technical"
modifications to the Protocols, the Execu-
tive Branch, without the approval of the
Senate, cannot modify the Protocols or
adopt a meaning for any provision of the
Treaty in a manner that is contrary to or in-
consistent with the meaning of the Treaty
as presented to the Senate.
RECOMMENDATION
In light of Ambassador Glitman's assur-
ances to the Committee and the statements
In the Article-by-Article Analysis, the Com-
mittee sees no need to recommend an under-
standing to the Resolution of Ratification
clarifying protocol amendment procedures.
Mr. WARNER. Mr. President, this
Senator has the understanding that
three Senators who participated in
this colloquy have a "common under-
standing," as we use that phrase.
Mr. HELMS. And have stated a
common understanding in our own
vernacular. I ask unanimous consent
to include in the RECORD at this point
an exchange between myself with Sec-
retary Shultz and Ambassador Mit-
man.
There being no objection, the ex-
change was ordered to be printed in
the RECORD, as follows:
EXCERPTS FROM MARCH 16, 1988, FOREIGN
RELATIONS HEARING WITH SECRETARY,SHULTZ
Senator HELMS. 8 ? ? I want to talk to you,
If I may, about some legal concerns.
Article 13, paragraph 1B provides that the
Special Verification Commission will be able
to "agree upon such measures as may be
necessary to improve the viability and the
effectiveness of this treaty."
Now, it is not clear to me and maybe to
others who have accepted this treaty from
the outset, some of them before they even
looked at it, how the U.S. representatives
could do that unilaterally. Maybe you could
clear that up.
Why would such improvements not be
subject to submission to this Senate for ap-
proval?
Secretary Strum. I would like to ask Am-
bassador Glitman to give you the negotiat-
ing background for why that is there and
what it means.
Ambassador GUTMAN. Well, briefly, Sena-
tor, the answer to your question is there is
no reason why it need not be brought to the
Senate for approval if the measure which
has been agreed upon between the United
States and the Soviet Union at the execu-
tive branch level.
Senator HELMS. I think we may be getting
somewhere. Go ahead.
Ambassador GUTMAN. All I am saying is if
that measure were to change the substan-
tive obligations of the treaty, then it would
also require article 16, which is the amend-
ment article, to take effect.
If it is a technical difference, and we have
talked about that, I think, in one of the
other committees, where you may want to
change a measuring device, for example, or
you come up with a new means of communi-
cation which we did not foresee, that would
be the sort of thing that could be done with-
out requiring formal amendment.
But we are also aware of the Case act pro-
visions, which require us to notify the Con-
gress.
Senator HELMS. But do you see the quag-
mire you are moving into? I was going to
bring up article 16, which talks about sub-
stantive amendments.
The question came to my mind, Who is
going to determine whether a modification
Is merely a technical improvement or a sub-
stantive change? Who will make that judg-
ment? ?
Ambassador GUTMAN. I think we will
want to cooperate with the Senate on that
matter. That is why we would have to notify
the Senate of any type of change.
In the case of an agreement that was a
very technical change, we would want to
come to this committee and the proper
organs of this body, of this Senate, and let
them know what we have in mind.
FINAL INF QUESTIONS FOR THE RECORD
Mr. HELMS. Mr. President, Secre-
tary of State Schultz promised, in
open session at the final, unprecedent-
ed joint committee INF hearing on
May 16, 1988, that he would answer all
questions for the record. I have just
today received the answers to my May
16 questions for the record and I ask
unanimous consent that these ques-
tions and answers be printed in the
RECORD.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, RS follows:
COMMITTEE ON FOREIGN RELATIONS,
Washington, DC, May 16, 1988.
Hon. GEORGE SHULTZ,
Secretary of State, Department of State,
Washington, DC
DEAR MR. SECRETARY: We are deeply con-
cerned about whether there has been final
resolution of several important remaining
Issues relating to the proposed INF Treaty.
Accordingly, we request that all of the ques-
tions in the attached unclassified and classi-
fied sets of questions for the record result-
ing from the unprecedented Joint hearing
today of the Senate Committee on Foreign
Relations, Committee on Armed Services,
and Select Committee on Intelligence, be
answered as soon as possible.
We fully appreciate the Administration's
strong desire that the Senate give its advice
and consent for the President to ratify thi
Treaty at the impending Moscow meeting
We believe, however, that all of these que
tions should be answered before debat
begins on the Senate Floor.
Sincerely,
JESSE HELMS,
GORDON HUMPHREY.
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May 26, 1:988
CONGRESSIONAL RECORD ? SENATE
FINAL INF VERIFICATION QUESTIONS?
UNCLASSIFIED
1. In January, 1988, the State Department
spokesman stated in answer to questions
from Congressman Kemp about INF Treaty
data discrepancies that there were no data
discrepancies, and that the State Depart-
ment was fully satisfied with the accuracy
and completeness of the Soviet-supplied
missile data and photographs.
State Department spokesman Redmond
stated on January 6, 1988:
"We have no reason to doubt the accuracy
or the authenticity of the SS-20 photo-
graph or any of the others." (Emphasis
added.)
Moreover, in answer to my January 12,
1988 letter, on February 5, 1988, the State
Department stated:
". . . we have no basis to charge the Soviet
Union with failure to provide the data re-
quired by the Treaty . . . the U.S. govern-
ment has no basis to believe that the photo-
graph of the SS-23 missile stage is inaccu-
rate. . . . There is no inconsistency between
the interagency assessment of the SS-23
photograph and the public statements of
the State Department regarding that photo-
graph."
But at the same time the State Depart-
ment was denying these Soviet data discrep-
ancies, it was secretly negotiating with the
Soviets, trying to get the Soviets to correct
them by furnishing new data and photo-
graphs. Now, however, the State Depart-
ment is finally requiring the Soviets to fur-
nish additional photographs of their SS-4,
SS-12, SS-23, and SS-20, showing the front
sections and connecting sections, afterall.
Moreover, the Soviets have also finally cor-
rected the length of their SS-23 first stage
afterall.
[The May 12, 1988 Glitman-Chervov note
states: "The sides will exchange additional
photographs no later than May 15, 1988.
. . . For the Soviet side,' these photographs
will be the SS-23, SS-12, and SS-4 with
their front sections attached, and of the
front section of the SS-20. . . . The length
of the SS-23 missile stage will be changed,.
in a corrigendum to the Memorandum of
Understanding, to 4.56 meters."]
QUESTIONS
(a) Why did the State Department deny
to Congress that the Soviet data was inaccu-
rate, precisely when the State Department
was negotiating with the Soviets to correct
these inaccuracies?
(b) How do you explain the inconsistency
in the State Department position?
(c) Because the INF Treaty Memorandum
of Understanding on Data states that each
side is responsible for the accuracy of its
own data, why was the State Department
attempting to cover-up the now-confirmed
inaccuracies in the Soviet data?
(d) Was it appropriate for the State De-
partment to be the advocate of the accuracy
of Soviet data now confirmed to be inaccu-
rate?
2. The May 12, 1988 Glitman-Chervov
note, point #1, refers to paragraph 7 of Sec-
tion VII of the INF Treaty Inspection Pro-
tocol. This paragraph states that:
". . . inspectors shall have the right to in-
pect the entire inspection site, including
he interior of structures, containers or ye-
ncles, or including covered objects, whose
ensions are equal to or greater than the
ensions specified in Section VI of the
emora.ndum of Understanding for the mis-
es, stages of such missiles, launchers or
port equipment of the inspected Party."
phasis added.)
he stage lengths for the SS-20 in Section
f the MOU are 8.58 meters for the first
e and 4.60 meters for the second stage.
The May 12, 1988 Glitman-Chervov note
in point No. 1 specifies that for "baseline,
close-out, and short-notice inspections, the
Parties will be inspecting . . . for the
USSR?the first stage of the SS-12 missile,
the stage of the SS-23 missile, the SSC-X-4
cruise missile, and the SS-4 launch stand."
The SS-20 first and second stages are not
mentioned as inspectable items in the new
note, yet the proposed INF Treaty clearly
allows the U.S. to inspect for the SS-20 first
and second stages at all inspectable sites.
Indeed, the MOU clearly recognizes the im-
portance of SS-20 stages, because the MOU
states that the Soviets have "650 second
stages" for intermediate range missiles, the
exact number of Soviet-declared deployed
and non-deployed SS-20 missiles, also imply-
ing the right to inspect 55-20 second stages.
QUESTION
Why at the 'last moment did the U.S.
agree to delete the crucially important right
to inspect for SS-20 stages, when the INF
Treaty gives the U.S. this vital right?
3. Section IX, paragraph 11 and 12, of the
Protocol on Inspection states that the U.S.
can weigh and measure: "any shipment exit-
ing through the portal specified in para-
graph 1 of this Section [i.e. at Votkinsk]
which is large enough and heavy enough to
contain an intermediate range GLBM or
longest stage of such a GLBM of the in-
spected Party." (Emphasis added.)
Yet the May 12, 1988 Glitman-Chervov
note states in point No. 4: "In the context of
this assurance, the United States will not be
inspecting any shipment whose dimensions
are less than those of an SS-20 launch can-
ister as listed in the Memorandum of Under-
standing." (Emphasis added.) The length of
the SS-20 longest stage?its first stage?is
8.58 meters, and the length of the SS-20
canister listed in the MOU is 19.32 meters.
Thus the U.S. has given up the right to in-
spect any object shorter than 19.32 meters.
QUESTIONS
(a) Why did the U.S. give up the right,
clearly specified in detail in the proposed
INF Treaty, to inspect SS-20 first stages?
(b) Using this last-minute U.S. conces-
sions, can the Soviets legally bring SS-20
first and second stages separately through
the Votkinsk portal, for assenibly elsewhere,
completely destroying the purpose of the
highly touted portal inspections?
(c) Can the Soviets thus continue to
produce SS-20s under the proposed INF
Treaty afterall, despite the State Depart-
ment's claims that the Treaty prevents this?
4. The May 12, 1988 Soviet note on futur-
istics, apparently initialed by Soviet negotia-
tor Vicktor Karpov, is from the "Govern-
ment of the Union of Soviet Socialist Re-
publics." Yet the proposed INF Treaty itself
was signed by Mikhail Gorbachev, who
listed himself as "General Secretary of the
Communist Party of the Soviet Union.
QUESTIONS
(a) How can you explain the addition of
notes from the Soviet Government to a pro-
posed Treaty signed by the leader of the
Party?
(b) Is the State Department recognizing
the Soviet Government or the Soviet Com-
munist Pasty as representing the USSR, or
both?
(c) Why did .the State Department fail to
ask Gorbachev to provide documentation
for any plenipoteniary powers he may have
had to sign the proposed INF Treaty, as is
required under international law and Soviet
laws?
5. The MOU gives the Soviet SS-5 mis-
sile's length, with front section, as 24.30
meters. Yet the Soviet photograph of the
SS-5 supplied before the Treaty was signed
S 6721
does not show its front section. The Soviets
are being required to furnish photographs
of the front sections of all their INF mis-
siles except the SS-5. The State Depart-
ment's February 5, 1988 answer to my Janu-
ary 12, 1988 letter states: "The Parties are
under an obligation to provide photographs
of Treaty-limited items."
QUESTION
Why will no photograph of an SS-5 with
front section be required, if the Soviets are
required to eliminate this missile with front
section, and are providing photographs of
the front sections of all their other INF mis-
siles?
6. The Senate has learned of the following
documents which should be integral parts of
the proposed INF Treaty:
(a) Corrigendum note as of January 15,
1988;
(b) Dubinin note of May 8, 1988, Secret;
(c) Kampelman?"V K" and/or Kampel-
man-Karpov note on futuristics, May 12,
1988;
(d) Glitman-Chervov note on verification,
May 12, 1988;
(e) Glitman letter to Chervov on FRG
Pershing lAs, May 12, 1988, Secret;
(f) Additional photographs to be added to
MOU?
SS-4 with front section;
SS-12 with front section;
SS-23 with front section;
SS-20 front section.
QUESTIONS
(a) When will we receive copies of each of
these documents?
(b) Should they be incorporated into the
Treaty?
(c) If not, what is their status, and what
should the Senate do with them?
(d) Will the additional 40 verification
issues still under negotiation with the Sovi-
ets be reported to the Senate promptly?
U.S. DEPARTMENT OP STATE,
Washington, DC.
Hon. JESSE HELMS,
U.S. Senate.
DEAR SENATOR HELMS: I have been request-
ed to respond to your and Senator Hum-
phrey's 16 May letter to the Secretary con-
cerning questions inter alia about results
from the 11-12 May Ministerial and aspects
of the Soviet SS-N-19 cruise missile. Our
answers to these questions are attached. As
requested, the answers to your first six
questions are unclassified; the answers to
the second six questions are classified
"Secret." A copy of this material has been
sent to Senator Humphrey.
Sincerely,
J. EDWARD Fox,
Assistant Secretary,
Legislative Affairs.
U.S. DEPARTMENT OF STATE,
Washington, DC.
Hon. GORDON J. HUMPHREY,
U.S. Senate.
DEAR SENATOR HUMPHREY: I have been re-
quested to respond to your and Senator
Helms' 16 May letter to the Secretary con-
cerning questions inter alia about results
from the 11-12 May Ministerial and aspects
of the Soviet SS-N-19 cruise missile. Our
answers to these questions are attached. As
requested, the answers to your first six
questions are unclassified; the answers to
the second six questions are classified
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S 6722
CONGRESSIONAL RECORD ? SENATE
"Secret." A copy has been sent to Senator
Helms.
Sincerely,
J. EDWARD Fox, ?
Assistant Secretary,
Legislative Affairs.
1. In January, 1988, the State Department
spokesman stated in answer to questions
from Congressman Kemp about INF Treaty
data discrepancies that there were no data
discrepancies, and that the State Depart-
ment was fully satisfied with the accuracy
and completeness of the Soviet-supplied
missile data and photographs.
State Department spokesman Redmond
stated on January 6, 1988:
"We have no reason to doubt the accuracy
or the authenticity of the SS-20 photo-
graph or any of the others." (Emphasis
added.)
Moreover, in answer to my January 12,
1988 letter, on February 5, 1988, the State
Department stated:
". . . we have no basis to charge the Soviet
Union with failure to provide the data re-
quired by the Treaty . . . the U.S. Govern-
ment has no basis to believe that the photo-
graph of the SS-23 missile stage is inaccu-
rate . . . There is no inconsistency between
the interagency assessment of the SS-23
photograph and the public statements of
the State Department regarding that photo-
graph."
But at the same time the State Depart-
ment was denying these Soviet data discrep-
ancies, it was secretly negotiating with the
Soviets, trying to get the Soviets to correct
them by furnishing new data and photo-
graphs. Now, however, the - State Depart-
ment is finally requiring the Soviets to fur-
nish additional photographs of their SS-4,
SS-12, SS-23, and SS-20, showing the front
sections and connecting sections, afterall.
Moreover, the Soviets have also finally cor-
rected the length of their SS-23 first stage
afterall.
(The May 12, 1988 Glitman-Chervov note
states: "The sides will exchange additional
photographs no later than May 15, 1988. . .
For the Soviet side, these photographs will
be of the SS-23, SS-12, and SS-4 with their
front sections attached, and of the front
section of the SS-20 . . . The length of the
SS-23 missile stage will be changed, in a cor-
rigendum to the Memorandum of Under-
standing, to 4.56 meters.")
Ia. Why did the State Department deny
to Congress that the Soviet data was inaccu-
rate, precisely when the State Department
was negotiating with the Soviets to correct
these inaccuracies?
lb. How do you explain the inconsistency
in the State Department position?
lc. Because the INF Treaty Memorandum
of Understanding on Data states that each
side is responsible for the accuracy of its
own data, why was the State Department
attempting to cover-up the now-confirmed
inaccuracies in the Soviet data?
id. Was it appropriate for the State De-
partment to be the advocate of the accuracy
of the Soviet data now confirmed to be inac-
curate?
We had no basis in January, and have no
basis now, to charge that the Soviet-provid-
ed photograph of the SS-23 missile stage
was not accurate or authentic. Our discus-
sion of this matter with the Soviets was
based on the fact that SS-23 photograph de-
picted the missile stage without a front sec-
tion. Comparing the length of the stage in
the photograph to the length provided in
the MOU, it was apparent to us that MOU
length included a connector. Nothing in the
Treaty or the negotiations specified wheth-
er photographs or MOU data should include
connectors. We told the Soviets, after re-
viewing the photographs and data, that we
preferred a photograph of the missile with
its front section, and that the MOU length
for the SS-23 missile stage should exclude
the connector. the Soviets have now agreed
with us that the appropriate length for the
SS-23 missile stage without connector is
4.56 meters.
We also have had no basis for charging
that the other Soviet-provided photographs
were inaccurate or inauthentic. We did raise
with the Soviets the fact that the photo-
graphs of their ballistic missiles depicted
missiles without their front sections. In sub-
sequent discussions, the Soviets agreed to
provide the additional photographs, and
they have done so. The Soviets stated that
the photographs we had provided of our
ballistic missiles had not included measur-
ing scales and we agreed to provide them.
The two sides exchanged photographs on
May 15, 1988.
Both sides have also exchanged corri-
genda to the MOU.
2. The May 12, 1988 Glitman-Chervov
note, point #1, refers to paragraph 7 of Sec-
tion VII of the INF Treaty Inspection Pro-
tocol. This paragraph states that:
". . . inspectors shall have the right to in-
spect the entire inspection site, including
the interior of structures, containers or ve-
hicles, or including covered objects, whose
dimensions are equal to or greater than the
dimensions specified in Section VI of the
Memorandum of Understaixling for the mis-
siles, stages of such missiles, launchers or
support equipment of the inspected Party."
(Emphasis added.)
The stage lengths for the SS-20 in Section
VI of the MOLT are 8.58 meters for the first
stage and 4.60 meters for the second stage.
The May 12, 1988 Glitman-Chervov note
in point #1 specifies that for "baseline,
close-out, and short-notice inspections, the
Parties will be inspecting . . . for the
USSR?the first stage of the SS-12 missile,
the stage of the SS-23 missile, the SSC-X-4
cruise missile, and the SS-4 launch stand."
The SS-20 first and second stages are not
mentioned as inspectable items in the new
note, yet the proposed INF Treaty clearly
allows the U.S. to inspect for the SS-20 first
and second stages at all inspectable sites.
Indeed. the MOU clearly recognizes the im-
portance of SS-20 stages, because the MOU
states that the Soviets have "650 second
stages" for intermediate range missiles, the
exact number of Soviet-declared deployed
and non-deployed SS-20 missiles, also imply-
ing the right to inspect SS-20 second stages.
Why at the last moment did the U.S.
agree to delete the crucially important right
to inspect for SS-20 stages, when the INF
Treaty gives the U.S. this vital right?
The U.S. did not "delete" the right to in-
spect for SS-20 stages. Your citation of the
May 12, 1988 agreed minute left out a par-
ticularly relevant passage. The May 12, 1988
agreed minute specifies that the "Parties
will be inspecting the entire inspection site,
including the interior of structures, contain-
ers or vehicles, or including covered objects,
capable of containing (emphasis added) . . .
for the USSR, the first stages of the SS-12
missile, the stage of the SS-23 missile, ? *"
This passage means that these items are
the smallest Treaty-limited items for which
the U.S. can inspect. SS-20 stages are larger
than these items and we, therefore, can in-
spect for them as well.
3b. Using this last-minute U.S. concession,
can the Soviets legally bring SS-20 first and
second stages separately through the Vot-
kinsk portal, for assenibly elsewhere, com-
pletely destroying the purpose of the highly
touted portal inspections?
3b. There was no U.S. concession with re-
spect to our rights set forth in the Treaty.
Votkinsk is a missile final assembly facility
where missile stages manufactured else-
where are mated. The portal monitoring
system at Votkinsk enables us to verify that
assembled SS-20s are not exiting this facili-
ty. We have, moreover, obtained an addi-
tional assurance that the Soviet Union will
not ship from Votkinsk anything "whose di-
mensions are equal to or greater than the
dimensions of the SS-20 missile without its
front section but less than the dimensions
of an SS-20 launch canister, as those dimen-
sions are listed in the Memorandum of Un-
derstanding".
3c. Can the Soviets thus continue to
produce SS-20s under the proposed INF
Treaty afterall, despite the State Depart-
ment's claims that the Treaty prevents this?
3c. Article VI of the Treaty clearly bans
the production of SS-20s. Thus, any produc-
tion of SS-20s after entry into force would
be a Treaty violation. If the Soviets at-
tempted to assemble SS-20s outside of Vot-
kinsk, they would face a significant risk of
detection by U.S. intelligence. Moreover, if
the production of some number of SS-20s
did scape detection, the military utility of
these missiles would be questionable at best,
since the Soviets could not qualify their new
assembly line by flight-testing the missiles
with significant risk of being detected.
4. The May 12, 1988 Soviet note on futur-
istics, apparently initialed by Soviet negotia-
tor Vicktor (sic) Karpov, is from the "Gov-
ernment of the Union of Soviet Socialist Re-
publics." Yet the proposed INF Treaty itself
was signed by Mikhail Gorbachev, who
listed himself as "General Secretary of the
Communist Party of the Soviet Union."
4a. How can you explain the addition of
notes from the Soviet Government to a pro-
posed Treaty signed by the leader of the
Party?
4b. Is the State Department recognizing
the Soviet Government or the Soviet Com-
munist Party as representing the USSR, or
both?
4c. Why did the State Department fail to
ask Gorbachev to provide documentation
for any plenipotentiary powers he may have
had to sign the proposed INF Treaty, as is
required under international law and Soviet
law?
4a-c. Under international law, a person
has authority to sign a Treaty if it appears
from the circumstances that it was the in-
tention of the state involved that he repre-
sent it for that purpose. This is true even if
he has not been issued full powers, or does
not occupy a formal governmental position.
No rule of international law requires any
particular form of evidence of a foreign
leader's power to sign a treaty.
Article 7(1) of the Vienna Convention,
which in our view accurately reflects rele-
vant customary international law, states
that:
A person is considered as representing a
State for the purpose of adopting or au-
thenticating the text of a treaty or for the
purpose of expressing the consent of the
State to be bound by a treaty if:
(a) he produces appropriate full powers;
Or
(b) it appears from the practice of the
States concerned or from other. circum-
stances that their intentiOn was to consider
that person as representing the State fo
such purposes and to dispense with ful
powers.
In accordance with this rule, it is not t
practice of the United States to demand f
powers where the circumstances indic
that the person signing a treaty does in f
represent his government, as was the c
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
with Gorbachev's signature of the INF
Treaty on behalf of the Soviet Union. There
is no doubt about the authority of General
Secretary Gorbachev, a man who has dealt
regularly and authoritatively with the
President of the United States, to sign the
Treaty. Gorbachev clearly determines the
foreign policy of the Soviet Union, and regu-
larly deals on behalf of the Soviet Union
with foreign heads of state and foreign min-
isters. The U.S. Government has no doubt
about Gorbachev's authority.
The many high-ranking Soviet govern-
mental officials present at the Washington
Summit (including the Foreign Minister)
clearly accepted Mr. Gorbachev's authority
to represent the Soviet Union and to sign
the Treaty. Moreover, since the Treaty was
signed the governmental authorities in
Moscow have made clear by their conduct
that they accept the validity of Gorbachev's
signature on behalf of the Soviet govern-
ment. The Supreme Soviet has carried on its
deliberations on the Treaty, with no sugges-
tion whatsoever that Mr. Gorbachev acted
without authority.
Earlier this month, Secretary Shultz dis-
cussed the implementation of the Treaty
with the Soviet Foreign Minister, who unde-
niably has authority to commit the Soviet
Union for these purposes. These exchanges
could only have taken place on the assump-
tion that the Treaty had been validly
signed. As an outcome of those exchanges,
Soviet officials signed two agreements that
were expressly based on the Treaty, whose
validity the agreements assumed.
The General Secretary of the Communist
Party of the Soviet Union obviously occu-
pies a much different position than the offi-
cials of political parties in Western coun-
tries. The General Secretary currently has
the predominant governing authority in
Soviet Society, and international law in no
way precludes this. In any event, ratifica-
tion of the Treaty by the Soviet parliament
will remove any possible further questions
on this point.
5. The MOU gives the Soviet SS-5 mis-
sile's length, with front section, as 24.03
meters. Yet the Soviet photograph of the
SS-5 supplied before the Treaty was signed
does not show its front section. The Soviets
are being required to furnish photographs
of the front sections of all their INF mis-
siles except the SS-5. The State Depart-
ment's February 5, 1988 answer to my Janu-
ary 12, 1988 letter states: The Parties are
under an obligation to provide photographs
of Treaty-limited items."
Why will no photograph of an SS-5 with
front section be required, if the Soviets are
required to eliminate this missile with front
section, and are providing photographs of
the front sections of all their other INF mis-
siles?
In the data in the MOU, the Soviets in-
formed us that they have six non deployed
SS-5's in their inventory. They also in-
formed us that none of these missiles have
front sections. Given these facts, the Soviets
are not required to, and indeed have no SS-
5 front sections, to eliminate.
6. The Senate has learned of the following
documents which should be integral parts of
the INF Treaty:
a. Corrigendum note as of January 15,
988;
b. Dubinin note of May 8, 1988, "Secret";
c. Kampelman?"V K" and/or Kampel-
an-Karpov note on futuristics, May 12,
88;
. Glitman-Chervov note on verification,
y 12, 1988, SECRET;
. Glitman letter to Chervov on FRG Per-
g 1 As, May 12, 1988, "Secret";
Additional photographs to be added to
U?
SS-4 with front section; SS-12 with front
section; SS-23 with front section; and SS-20
front section.
6a. When will we receive copies of each of
these documents?
6b. Should they be incorporated into the
Treaty?
6c. If not, what is their status, and what
should the Senate do with them?
- Regarding the document referred to in
"a." above, we advised the Soviets shortly
after Treaty signature, of several technical
and typographical errors in the Memoran-
dum of Understanding and Inspection Pro-
tocol. Such errors can be readily corrected
by the Parties in accordance with interna-
tional treaty law and standard practice, and
these corrections have been made in accord-
ance with that law and practice. The ex-
change of notes effecting these corrections
has been completed ,and is being transmit-
ted to the Senate. This is a matter that in
no way affects the substance of the Treaty
and thus should have no significance for the
Senate's deliberations and decision on the
Treaty.
Document b. (Dubinin note of May 8,
1988) was a preliminary communication on
verification issues. It had no independent
legal status. Whatever substance it con-
tained has now been superseded by the May
12, 1988 agreed minute on verification
issues, discussed immediately below.
Documents c. (the Kampelman-Karpov
exchange of notes on futuristics) and d. (the
Glitman-Chervov agreed minute on verifica-
tion issues) constitute legally binding
common understandings of the signatories'
obligations under the INF Treaty. As their
substantive relationship to the Treaty is
clear, formally incorporating these docu-
ments into the Treaty is unnecessary. As
international agreements related to the INF
Treaty, they have been provided to the
Senate for its information in acting on that
Treaty.. These documents, along with docu-
ment e. (the Glitman letter to Chervov on
FRG Pershing IAs), which has no independ-
ent legal status but merely provides certain
information to the Soviet Union in the con-
text of the agreed minute, have been provid-
ed to the Committee on Foreign Relations,
the Committee on Armed Services, and the
Select Committee on Intelligence.
The photographs to be added to the
MOU, mentioned in f. above, will be provid-
ed to the Senate shortly. As photographs
appended to the MOU pursuant to its Sec-
tion VI, they form part of the Treaty and
will be transmitted for inclusion in the offi-
cial text that is now before the Senate.
6d. Will the additional 40 verification
issues still under negotiation with the Sovi-
ets be reported to the Senate promptly?
We will report promptly on outstanding
implementation questions on a regular
basis.
Mr. WARNER. Mr. President, unless
other Senators desire a rollcall vote on
the amendment in the second degree, I
would now ask that the Senate pro-
ceed to vote on the amendment in the
second degree.
The PRESIDING OFFICER. Do
Senators yield back their time?
Mr. PELL. Mr. .President, I yield
back the remainder of my time.
The PRESIDING OFFICER. All
time is yielded back.
The question is on agreeing to the
amendment offered by the Senator
from North Carolina.
The amendment (No. 2303) was
agreed to.
S 6723
Mr. WARNER. Mr. President, I
move to reconsider the vote by which
the amendment was agreed to.
Mr. HELMS. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
The PRESIDING OFFICER. The
question now occurs on the first-
degree amendment, as amended.
Mr. WARNER. Mr. President, it is
the understanding of this Senator that
the leadership wishes to have a
quorum call at this time for the pur-
pose of notifying Senators.
Mr. PELL. Mr. President, 'I suggest
the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. BYRD. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The question is on agreeing to the
first-degree amendment, as amended,
On this question, the yeas and nays
have been ordered, and the clerk will
call the roll.
The assistant legislative clerk called
the roll.
Mr. CRANSTON. I announce that
the Senator from Hawaii Mr. MATSU-
NAGA] is necessarily absent.
I also announce that the Senator
from Delaware [Mr. Brum] is absent
because of illness.
Mr. SIMPSON. I announced that
the Senator from Kansas [Mrs. KASSE-
mum] and the Senator from Pennsyl-
vania [Mr. SPECTER] are necessarily
absent.
The, PRESIDING OFFICER. Are
there any other Senators in the Cham-
ber who desire to vote?
The result was announced?yeas 96,
nays 0, as follows:
[Rollcall Vote No. 157 Ex.]
Adams
Armstrong
Baucus
Bentsen
Bingarnan
Bond
Boren
Boschwitz
Bradley
Breaux
Bumpers
Burdick
Byrd
Chafee
Chiles
Cochran
Cohen
Conrad
Cranston
D'Amato
Danforth
Daschle
DeConcini
Dixon
Dodd
Dole
Domenici
Durenberger
Evans
Exon
Ford
Fowler
YEAS-96
Gam
Glenn
Gore
Graham
Gramm
Grassley
Harkin
Hatch
Hatfield
Hecht
Heflin
Heinz
Helms
Hollings
Humphrey
Inouye
Johnston
Karnes
Kasten
Kennedy
Kerry
Lautenberg
Leahy
Levin
Lugar
McCain
McClure
McConnell
Melcher
Metzenbaum
Mikulski
Mitchell
Moynihan
Murkowski
Nickles
Nunn
Packwood
Pell
Pressler
Proxmire
Pryor
Quayle
Reid
Riegle
Rockefeller
Roth
Rudman
Sanford
Sarbanes
Sasser
Shelby
Simon
Simpson
Stafford
Stennis
Stevens
Symms
Thurmond
Trible
Wallop
Warner
Weicker
Wilson ?
Wirth
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S 6724
Biden
Kassebatun
NAYS-0
NOT VOTING-4
Matsunaga
Specter
CONGRESSIONAL RECORD ? SENATE
So the amendment (No. 2302), as
amended, was agreed to.
Mr. WARNER. Mr. President, I
move to reconsider the vote by which
the amendment, as amended, was
agreed to.
Mr. LUGAR. I move to lay that
motion on the table.
The motion to lay on the table was ?
agreed to.
The PRESIDING OFFICER. The
majority leader is recognized.
? Mr. BYRD. Mr. President, I ask
unanimous consent that I may yield to
the Senator from Virginia with my
floor rights protected.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. WARNER. Mr. President, I
thank the distinguished majority
leader.
Mr. President, I just wish to thank
all Senators who participated in work-
ing on this amendment and the many
staff members that did so.
The PRESIDING OFFICER. The
majority leader.
Mr. BYRD. Mr. President, I thank
the distinguished Senator.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. BYRD. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
AMENDMENT NO. 2306
Mr. BYRD. Mr. President, I with-
draw my, amendment No. 2296 and
send an amendment to the desk. I
have a right to do that since no action
has been taken on the amendment.
The PRESIDING OFFICER. The
Senator has that right. The amend-
ment is withdrawn. The amendment
will be stated.
The assistant legislative clerk read
as follows:
The Senator from West Virginia (Mr.
Bran] proposes an amendment numbered
2305.
Mr. BYRD. Mr. President, I ask
unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
The amendment is as follows:
Strike all after the word "provided", and
insert in lieu thereof the following: "that
the Senate's advice and consent to ratifica-
tion of the INF Treaty is subject to the con-
dition, based on the Treaty Clauses of the
Constitution, that?
"(1) the United States shall interpret the
Treaty in accordance with the common un-
derstanding of the Treaty shared by the
President and the Senate at the time the
Senate gave its advice and consent to ratifi-
cation;
"(2) such common understanding is based
on:
"(A) First, the text of the Treaty and the
provisions of this resolution of ratification;
and
"(B) Second, the authoritative representa-
tions which were provided by the President
and his representatives to the Senate and its
Committees, in seeking Senate consent to
ratification, insofar as such representations
were directed to the meaning and legal
effect of the text of the Treaty; and
"(3) the United States shall not agree to
or adopt an interpretation different from
that common understanding except pursu-
ant to Senate advice and consent to a subse-
quent treaty or protocol, or the enactment
of a statute; and
"(4) if, subsequent to ratification of the
Treaty, a question arises as to the interpre-
tation of a provision of the Treaty on which
no common understanding was reached in
accordance with paragraph (2), that provi-
sion shall be interpreted in accordance with
applicable United States law."
Mr. BYRD. Mr. President, discus-
sions have been underway including
the distinguished Republican leader,
the managers of the bill, and other
Senators who have been principals in
the discussions heretofore, and I think
that we are ready to propose an agree-
ment.
TIME LIMITATION AGREEMENT
Mr. BYRD. Mr. President, I ask
unanimous consent that there be 4
hours on the overall Biden and Byrd
amendments to be equally divided in
accordance with the usual form and
that at the conclusion of the 4 hours
the vote occur on the Byrd amend-
ment to be followed immediately with
a vote on the committee amendment,
as amended, if amended, without fur-
ther intervening action or debate.
The PRESIDING OFFICER. Is
there objection?
Mr. HOLLINGS. May I have 20 min-
utes within that 4 hours?
Mr. BYRD. And I ask unanimous
consent that there be an additional 20
minutes to be under the control of Mr.
HOLLINGS.
Mr. HOLLINGS. Make it 4 hours
and 20 minutes, or however.
The PRESIDING OFFICER. Is
there objection? Hearing none, it is so
ordered.
Mr. BYRD. Mr. President, I thank
all Senators.
Now, Mr. President, I ask unanimous
consent that rule XXII, as it pertains
to the cloture motion, be waived until
the final disposition of the order.
Mr. DOLE. Will the majority leader
yield?
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. DOLE. I wonder if, following the
disposition of this amendment, we
might agree at this time to take up the
amendment of the Senator from
North Carolina. He, as I understand it,
is ready to go.
I just say, the Senator from North
Carolina is prepared with an hour
equally divided, and I understand
there may be an objection. Hopefully,
we have worked that out.
Mr. CRANSTON. I object at this
time to such an agreement. I may not
May 26, 19681
object later. I am referring only to the
Helms amendment.
Mr. DOLE. Can I further inquire of
the majority leader if, during this 4-
hour interim period, we are able to put
together the UC on remaining amend-
ments, I assume we could interrupt
and not charge the time against either
side to get that agreement.
Mr. BYRD. I ask unanimous consent
that upon the disposition of the pend-
ing committee amendment and the
amendment in the second degree, the
majority leader again be recognized.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, I yield
the floor and thank all Senators.
The PRESIDING OFFICER. Who
yields time?
Mr. LUGAR. Mr. President, I sug-
gest the absence of a quorum with the
time to be equally divided.
The PRESIDING OFFICER. On
whose time?
Mr. LUGAR. To be equally divided
between the proponents and the oppo-
nents.
The PRESIDING OFFICER. The
Chair reminds the Senator from Indi-
ana that that time is now controlled
by three Senators.
The majority leader.
Mr. -BYRD. Mr. President, I ask
unanimous consent that the time be
divided equally without prejudice to
the time that is under the control of?
Mr. HOLLINGS.
The PRESIDING OFFICER. With-
out objection, it is so ordered. The
clerk will call the roll.
The legislative clerk proceeded to
call the roll.
Mr. BYRD. Madam President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Ms.
Mututsxt). Without objection, it is so
ordered.
Mr. BYRD. Madam President, may
we have order in the Senate?
The PRESIDING OFFICER. The
majority leader is correct. The Senate
is not in order. Will Senators in the
well please take their seats or retire
for further conversations?
Mr. BYRD. Madam President, this
time is running on my time, and I ask
that there be order in the Senate. I
hope that Senators will listen to the
Chair. This Senator will insist on
order in the Senate.
Madam President, I yield to the dis-
tinguished Republican leader.
Mr. DOLE. I thank the majority
leader. I want to designate in opposi-
tion to the amendment the Senator
from California, Senator Witsow.
Mr. BYRD. Madam President,
thank the Chair and I thank all Sen
tors. I know that Senators were tryin
to resolve another amendment, and
compliment them on that. I am ful
understanding of that. It is just t
time is running, and I want to get
with this amendment. I yield my
such time as I may require.
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May 26, 1,988
TREATY INTERPRETATION AMENDMENT
Madam President, the amendment I
am offering is intended to clarify and
strengthen the Senate's rightful and
constitutional role in the approval of
treaties. The dispute over the proper
interpretation of provisions of the
ABM Treaty has thrown a cloud of un-
certainty over the definitive meaning
of the provisions of a treaty which has
been approved by the Senate. This
amendment intends to make it crystal
clear that common understandings
reached by the Senate and the execu-
tive branch in the course of the
Senate deliberations, and investiga-
tions in connection with its advice and
consent to the ratification of a treaty,
bind any future Presidents. The
Senate consents to the ratification of
a treaty only on the understanding
that the President will interpret a
treaty and implement a treaty, in good
faith conformity to the meaning ar-
rived at by the Senate, as a result of
its deliberations.
Certain administration officials have
challenged the role of the Senate in
the treaty-making process, and de-
clared that the administration has the
right to interpret and implement the
provisions of a treaty in a manner in-
consistent with that shared by the
Senate and the President, through his
representatives, when it gave its advice
and consent. To accept this proposi-
tion would make a mockery of the
entire Senate process, and in fact it
would reduce the constitutional role of
the Senate to a mere nullity. The con-
sent of the Senate would be reduced to
a clerical function. This is not what
the framers of our Constitution envi-
sioned.
This amendment intends to bind the
President, as a condition of Senate ap-
proval to his implementing this treaty,
to the interpretation understood by
this body of the meaning of the provi-
sions of the treaty. If the President
does not agree to the common under-
standings developed in the process of
examining the text his negotiators de-
veloped, and in the process of the com-
mittee's examination of his represent-
atives and their testimony on the
treaty, then the President ought not
to exchange the instruments of ratifi-
cation. By his act of exchanging the
instruments of ratification, the Presi-
dent is bound by the common under-
standings developed in the Senate by
his representatives. The President and
the Senate, through this process en-
tered into a solemn constitutional con-
tract. This amendment does not break
any new legal ground. It does not
create any new constitutional roles or
duties, nor could it, it merely restates
hat I believe is the current law and
he current responsibilities of the two
ranches regarding the? treaty-making
ower. It would not have been neces-
ry had not a challenge been mount-
to that constitutional arrangement.
egard it as a critically important
endment for this body. I regard this
endment as going to the heart of
CONGRESSIONAL RECORD ? SENATE S 6725
one of the most important powers that
the framers of our Constitution gave
to the Senate. A proper resolution of
this dispute is of great significance.
The amendment states that the
President shall interpret this treaty in
accordance with the common under-
standing, shared by the Senate, that
prevails at the time the Senate gave
its advice and consent to the ratifica-
tion. It states further that this
common understanding is based on the
text of the treaty, any reservations or
understandings which the Senate may
attach to the resolution of ratification,
and on the authoritative testimony of
executive branch officials concerning
the meaning and legal effect of the
treaty. The amendment then states,
clearly and explicitly, that no subse-
quent interpretation of this treaty
which is inconsistent with this shared
understanding shall be permitted,
unless the Senate has participated
through the passage of a subsequent
treaty or protocol on the enactment of
a statute.
Mr. President, the amendment ad-
dresses the rules of the game when a
common understanding between the
two branches has been reached. There
can be times when, after the resolu-
tion of ratification has been approved,
a matter arises about which no inter-
pretation was available and no
common understanding was reached.
Under those circumstances?and I
expect that if both sides do their job
well, those will be rare circum-
stances?then paragraph 4 of my
amendment provides that the disputed
provision shall be interpreted in ac-
cordance with applicable United
States law. Those instances then
would be outside of the rules pertain-
ing to common understandings which
are embodied in clauses 1, 2 and 3 of
the amendment. We would not be
dealing with a reinterpretation of a
common understanding. That is where
the problem has heretofore arisen. In-
stead, we would be dealing with a first
interpretation of a case which arose
after the consent had been given. The
distinguished Senator from Maine, Mr.
COHEN, is to be commended for fash-
ioning this provision and I think it
fills a necessary GAP in my original
formulation in which others partici-
pated with me, and I think it is an fm-
-portant contribution to the amend-
ment. "
The position which the Senate
adopts through the passage of this
amendment is based on sound consti-
tutional logic. There is no need to re-
state that logic as part of the condi-
tion, but the Senate is clearly acting in
accordance with the treaty clause of
the constitution?article II, section 2,
clause 2?and in accordance with the
powers of the Senate in the making of
treaties. The amendment emphasizes
this point by reference to the consti-
tuting language.
The amendment I offer has the
same intent as the amendment pro-
posed by the committee on foreign re-
lations, but I believe that in consider-
ation of the hours that have gone into
its formulation and the bipartisan ef-
forts, the time involved and the appli-
cation of the energies and talents of
Senators on both sides of the aisle, it
is more focused, specific, and precise.
It prevents the President from acting
unilaterally in a way inconsistent with
the meaning of the treaty as under-
stood by both the Senate and the
President. There should be no ambigu-
ity about this.
Why is it important to attach this
condition at this time?
Once the Senate has concluded its
action on this resolution and has given
its advice and consent to ratification,
the treaty becomes the law of the
land. A treaty becomes law unlike
other laws?the House of Representa-
tives does not participate, the Presi-
dent does not have the opportunity to
veto, and mistakes are not easily cor-
rected by subsequent legislation. A
treaty is thus quite different, in the
context of the law of the land, from a
bill which becomes a law.
For these reasons, the Senate spends
considerable time studying the treaty,
holding extensive hearings, examining
all issues carefully, and, ultimately,
approving the resolution of ratifica-
tion by a two-thirds vote of those Sen-
ators present. Three committees of
this Senate, composed of nearly half
of the membership of this Senate, con-
ducted what has probably been as ex-
haustive and responsible a scrutiny as
of any treaty that has come before
this body in our Nation's history. I be-
lieve this process has produced a
better treaty, and the committees are
to be commended for their diligence.
In this process. We examine the test
of the treaty very carefully. We rely
upon executive branch officials to tes-
tify as to the meaning of the treaty.
The testimony of these officials as
to the meaning of the treaty is author-
itative, and any inconsistencies or
problems should be detected by the
committees or the executive branch
and clarified prior to final action by
the Senate.
As we all know, several problems
were discovered in the course of exam-
ination of this treaty, and they did re-
quire the negotiation of diplomatic
notes and agreements to clear them
up.
All of this contributes to what the
Senate and the administration under-
stand to be the legal meaning and
effect of the treaty.
After all of this, if any administra-
tion comes along later and attempts to
change the interpretation of the
treaty, then that future administra-
tion is determining for itself what
should be the law of the land.
The Senate's approval of the treaty
Is based on the proposition that the
President will act in good faith to im-
plement the treaty in accord with the
common understandings of its terms
when that approval was given. If the
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S 6726 CONGRESSIONAL RECORD ? SENATE
administration decides later, after the
instruments have been exchanged,
that it does not like those understand-
ings and decides to interpret the
treaty differently, then it breaks the
constitutional contract. The Senate, in
reaching its decision, based that deci-
sion on the testimony and on the
record that was made before it in duly
constituted hearings, has no opportu-
nity at that time to give its advice and
consent to the reinterpretation of that.,
treaty.
That is why it is necessary at this
time to state clearly and irrevocably
that the Senate insists on its rights
and its duty under the Constitution to
bind the President to the interpreta-
tion of the treaty which the Senate ac-
cepted at the time it gave its advice
and consent to ratification.
Madam President, in closing I want
to thank the chairmen of the three
committees: First, the chairman of the
Foreign Relations Committee, which
has jurisdiction over the treaty, Sena-
tor PELT,.. I also want to thank the
other members of that committee. I
thank the ranking member even
though he was opposed to the treaty. I
thank Mr. LUGAR and others on that
committee. And I thank Senator
BIDEN, who, is not present today, but I
express deep appreciation to the mem-
bers of that committee for the dedicat-
ed attention that they gave to the
treaty, the hearings, the markup, and
the application of their not inconsider-
able talent in the work that was per-
formed in reporting the treaty to the
floor.
I also thank Senator NUNN, Senator
BOREN, and Senators WARNER and
COFIEN, chairmen and ranking mem-
bers of the Armed Services Committee
and the Intelligence Committee, for
the extraordinary probative diligence
that they exemplified in examining
the treaties. They were highly instru-
mental in bringing about actions that
will have resulted in an improvement
of the treaty, actions which did result
in renegotiations of the areas of the
treaty that emerged as problem areas.
And I compliment the administration
on its recognition that those problems
? had to be addressed. Some of those
were problems that had not been even
discussed during the negotiations on
the treaty.
Others were areas which had not
been thoroughly gone into. But the
administration worked fast and effec-
tively in bringing the Soviets to agree
in such ways that we feel that the
problems have been not only properly
addressed but have also been taken
care of.
So, Madam President, I thank all of
these Senators and their staffs. The
staffs on both sides of the aisle have
been most, most helpful. And I person-
ally want to thank Senator BAKER for
the excellent contributions that he
has' made, and even those who oppose
the treaty are to be thanked, too.
After all, they make a great contribu-
tion as well. We cannot all agree on ev-
erything. But those who oppose cer-
tainly render a service because often-
times they bring about the focusing of
minds of a given area, and as a result
final actions are affected.
Madam President, I am ready to
yield the floor, and I reserve the re-
mainder of my time.
Mr. WILSON. Madam President, will
the distinguished majority leader yield
for a question on the time of the oppo-
sition?
Mr. BYRD. Yes.
Mr. WILSON. I thank my friend the
majority leader.
Before I ask the question, if I may
be indulged for this personal observa-
tion, I think the majority leader is to
be commended. The substitute amend-
ment that he has offered seeks in two
important, ways to address what I
think were problems with the Eiden-
Pell, amendment as it was originally
drafted and presented.
This is indeed a substitute for it, but
the essential distinctions are really, I
think he would agree, as follows: That
in terms of defining the common un-
derstandings between the President
and the Senate at the time that advice
and consent of the Senate is given,
that common understanding is based
not only on the text of the treaty and
the authoritative representations
made by the President and his desig-
nees, but under Byrd substitute there
has been added to that definition of
common understanding "the provi-
sions of this resolution of ratifica-
tion."
Second, there is a change in the
Byrd amendment offered as paragraph
4 to it which states that it, subsequent
to ratification of the treaty, a question
arises as to the interpretation of a pro-
vision of the treaty on which no
common understanding was reached in
accordance with paragraph 2, that
being the paragraph that defines
common understanding, then that pro-
visions shall be interpreted in accord-
ance with the applicable U.S. law.
Those are the two essential changes
and they are important changes. The
first change, that being the addition
by the majority leader of the provi-
sions of this resolution of ratification,
means that the common understand-
ing upon which future interpretation
of this INF Treaty will be based will
include those conditions which the
Senate adds during this very process
now of ratification.
That is a very important addition.
The original Biden-Pell amendment
lacked those. So what it has done is
allow the Senate to make a very sub-
stantive contribution to the treaty in
terms of the conditions, those that are
purely binding upon the United
States, and those which, as we shall
see, may in fact bind the Soviet Union
are additions to what was negotiated
by our negotiators in Geneva.
Second, paragraph 4, which speaks
to a time subsequent to ratification
and the circumstance of a question
arising, has two interpretations to
May 26, 1988 '
which there was no common under-
standing given at the time of advise
and consent, is an effort by the major-
ity leader and Senator COHEN to try to
deal with those situations, as I under-
stand, it where there was an omission
not detected at the time of ratification
but discovered only subsequent, and to
deal with those situations where there
is in fact a conflict discovered as be-
tween witnesses representing the ad-
ministration in the making of those
so-called authoritative representa-
tions.
I commend Senator COHEN and the
majority leader for the effort to deal
with that problem because it is a real
problem. In my judgment, it does not
go far enough for the reason that it
fails to deal with the situation in
which we discover that there is an in-
consistency between a so-called au-
thoritative representation, and not
other conflicting testimony by another
administration witness but rather the
negotiating record, the very situation
which, indeed, we dealt with last year
at great length in terms of the debate
as to whether the broad or narrow was
the correct legal interpretation of the
ABM Treaty.
Having prefaced my question with
that, and I thank the majority leader
for his graciousness and patience, my
question is this: During the negotia-
tions to which the majority leader re-
ferred in his remarks, which occurred
last night, there were repeated efforts
by the majority leader, by Senator
NUNN, by Senator WARNER, by Senator
COHEN to make a point which was
that the Byrd amendment does not
seek to dispose of the debate on the
broad and narrow interpretation of
the ABM Treaty. Rather, I gather
that it. is the opinion of tie sponsor
that the Byrd amendment leaves that
particular question unresolved. It does
not seek to settle the question.
Mr. BYRD. The Senator is preemi-
nently correct.
Mr. WILSON.. I thank the majority
leader.
I think that is correct?that it does
not. I point out that the language that
has been chosen in the Byrd amend-
ment speaks to the INF Treaty. It
states that the Senate's advice and
consent to ratification of the INF
Treaty is subject to the condition and
does not purport to speak to any other
treaty?not the ABM Treaty, not a
future treaty, but simply to the INF
Treaty.
Is that a correct interpretation?
Mr. BYRD. Mr. President, I am not
interested in fighting or refighting the
battle concerning the ABM Treaty;
but I am interested in establishing
clearly the standard by which we all
ought to be guided in connection with
the making and the interpretation o
treaties.,
The Senate has a clearcut, vital rol
in the making of treaties, by virtue
the "advice and consent" which
gives. I believe that the language t
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
has been carefully crafted here estab-
lishes that standard, and it in no way,
in my judgment, is intended to deal
with the ABM Treaty dispute.
It seems to me we have established
here what the Senate's proper role is
and clearly established that if there is
a shared understanding between the
Senate and the administration at the
time the Senate gives its advice and
consent, then that clear understand-
ing?that common understanding, I
should say, that shared understand-
ing?there should be no doubts about
that, because there has been a meet-
ing of the minds on that.
Consequently, no President should
come along later and try to reinterpret
that; because if that were to occur
then, what good, what benefit is de-
rived, in the interests of the United
States and the American people, by
the Senate's giving its advice and con-
sent? Its advice and consent is a mere
matter of form in that event.
The constitutional framers did not
intend for the words "advice and con-
sent" to be symbolic. They meant for
those words to be substantive, to have
meaning. This amendment establishes
and provides that there will be no re-
interpretation after the Senate and
Executive both agree, through a
shared understanding, as to what the
treaty means?that there be no rein-
terpretation without further action
and approval by the Senate thereof.
As to the common understanding to
which the Senator referred, the
amendment, of course, sets forth what
that common understanding is based
on. As the Senator has correctly point-
ed out, the Resolution of Ratification
is a vital part of the common under-
standing as evidence of what that
common understanding is.
Mr. WILSON. I thank the majority
leader.
I simply point out, Madam Presi-
dent, that the inclusion of the provi-
sions of the Resolution of Ratification
within the definition of the basis for
common understanding between the
President and the Senate is of consid-
erable importance as it relates to the
interpretation of the INF Treaty; be-
cause what occurred during the proc-
ess leading to the present debate on
the floor of the Senate was, without
question, the most thorough analysis
in the history of any treaty considered
by the Senate of the United States.
The number of hearings, the length of
hearings, the hours of testimony, the
fact that for the first time in the his-
tory of the U.S. Senate, the Senate
had before it not only the authorita-
tive representations of the administra-
ion, but also the negotiating history,
r the negotiating record, gave to the
enate the opportunity which it had
ever before had, to actually compare
consistency those authoritative
resentations and the actual record
the negotiation as it took place in
neva.
dmittedly, that negotiating record
not contain instructions from the
U.S. Government to its negotiators. It
did not contain their responses to in-
structions received. But it did contain
those things which were the common
history, known to both sides, to the
Soviets and to the American negotia-
tors at Geneva. Therefore, all that
provides the proper basis in interna-
tional law for that kind of frame of
reference necessary to explain what
may occur as ambiguities in the face
of the text, and indeed ambiguities did
occur. There were clearly some omis-
sions.
We have dealt this morning with one
of the most serious. In the debate that
occurred this morning on the so-called
omnibus amendment, the question of
futures as it related to the definition
of weapons delivery systems was dis-
cussed at considerable length, as it
should have been. The point, very
simply, was that in the course of nego-
tiations, a representation was made
which was not clear at the time. In
fact, as a result of the lack of clarity,
which was discovered in the course of
hearings by the Armed Services Com-
mittee of the U.S. Senate, there was
necessity to resort to the negotiating
record.
The negotiating record, in that in-
stance, disclosed that there was not a
clear understanding at Geneva. We, in
turn, negotiated the exchange of let-
ters between the Governments of the
United States and the Soviet Union,
which led to this morning's action,
which incorporates into the record?
and, really, by incorporating by refer-
ence makes a part of the Resolution of
Ratification?the letters exchanged
between our Governments, in which
there was agreement noted as to the
proper definition of what constitutes a
weapons delivery system precluded
under the terms of this arms control
agreement affecting intermediate
range ballistic missiles and intermedi-
ate ground-launched cruise missiles.
That is of great significance, and I
think the Senate is to be congratulat-
ed, as I said earlier, on the thorough-
ness with which it has examined the
record of this treaty?going through
the representations made by a variety
of administration witnesses, compar-
ing those representations with the ne-
gotiating record.
We had another instance, discussed
at some length about two afternoons
ago, that had to do with the awkward
language, the unclear language, the
double-negative situation, that is
found in the express language of arti-
cle VI, paragraph 2. What was neces-
sary there, -in order to cure that, was
to resort to the negotiating record,
where we found that the United
States representative, Ambassador
Glitman, was asked by his Soviet coun-
terparts to bring them a statement
from the United States Government
that made clear their right to proceed
with the construction of a missile
system as a part of their offensive in-
ventory.
S. 6727.
And the statement which the Soviets
sought was furnished by our Govern-
ment. The Soviets had earlier sought
to change the language. For reasons
that we need not repeat here, the
American negotiators rejected the re-
peated entreaties of the Soviets to
change the language to rid it of the
confusing double negative to give it a
clarity which in fact it does not have
on the face of the treaty text.
That clarification was gained only
by that subsequent ,statement which
was inserted in the negotiating record
and which thereby has become a part
of the record of ratification in terms
of the debate on the treaty and now
on the Resolution of Ratification.
The resort to the negotiating record
in both cases has made it possible for
the Senate to solve what were obvious
problems, certainly problems in terms
of the potential conflict they might
generate had they been left unre-
solved.
For that reason, I think the Senate
and those Members specifically in-
volved in the resolution of these two
issues are to be congratulated upon a
job not only well done but I would
argue much better done than by any
preceding Senate considering any pre-
ceding treaty.
What we have before us now in the
Byrd amendment as a substitute to
Biden-Pell is an effort to address a
portion of the question how shall the
Senate conduct itself with respect to
this treaty after ratification? And
what the Byrd substitute prescribes is
conduct by the President of the
United States because it states that
the Senate's advice and consent to
ratification, which is a duty required
of us by the U.S. Constitution, is based
upon certain expressed conditions, and
the condition is that the United States
shall interpret the treaty in accord-
ance with the common understanding
shared by the President and the
Senate at the time that the Senate
gave its advice and consent to ratifica-
tion.
To the extent that the Byrd substi-
tute has added important qualifica-
tions to the Biden-Pell amendment,
which it has now replaced, or will re-
place if it is approved by the Senate, it
is a distinct improvement. The ques-
tion for those of us here is whether or
not it goes far enough.
What I would argue, Madam Presi-
dent, is that it deals with a portion of
the question how shall the Senate con-
duct itself in the future, but it really
deals with the conduct of the Presi-
dent of the United States and future
Presidents. It does not specifically ad-
dress or prescribe a course of conduct
for the Senate apart from stating that
the Senate and the President shall in-
terpret the treaty in accordance with
the common understanding.
The question that arises and that is
not answered by the Byrd amendment
is this: If the United States shall inter-
pret the treaty in accordance with the
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S 6728 CONGRESSIONAL RECORD ? SENATE
common understanding in existence at
the time that the Senate gives its
advice and consent, is that condition
and that common understanding gov-
erning of obligations that are purely
domestic, or does it also seek to govern
and define those obligations of the
United States internationally, which is
to say those obligations that are im-
posed by the treaty itself rather than
by a unilateral condition added to the
Resolution of Ratification by the
Senate?
The important distinction, Madam
President, is this, and I think it is obvi-
ous to anyone who has spent the first
2 weeks in a first-year law school class
on contract law, there cannot be terms
added to an agreement that bind both
parties to it unless both parties agree.
There is in that case no meeting of the
minds. It is perfectly possible for one
of the parties unilaterally to assume
an obligation not imposed upon him or
her by the agreement in which case it
is binding upon the person assuming
that obligation but not the other
party to the contract, or, in this in-
stance, the other party to the treaty.
It is possible, in short, for the United
States Senate to adopt a condition
whereby we impose upon the United
States obligations which are not
shared by nor imposed by the treaty
upon the Soviet Union. We can do
that. There is no question that as a
matter of domestic law we are in a po-
sition to bind ourselves in any way
that we choose so long as there is an
adequate vote of the Senate to enact
such a prescription but that prescrip-
tion unilaterally imposed upon our-
selves does not bind the Soviet Union,
not unless or until they have specifi-
cally expressly agreed to it.
And that is the question that is left
unanswered by the Byrd amendment.
There is no question that the Byrd
amendment prescribes obligations of
the United States in terms of our do-
mestic law. But the question unan-
swered is, Does it impose upon the
United States an obligation under
international law that is not matched
by any corresponding obligation of the
Soviet Union?
I would argue?and I think that the
proponents of this amendment would
agree?that what this does, clearly, is
prescribe a course of conduct for the
executive branch in future and it pre-
scribes a condition to which the
Senate will in future attempt to hold
the executive branch. It does not, how-
ever, prescribe a course of conduct on
the part of the Senate with respect to
what it shall do in future with respect
to another treaty. I think that is a sig-
nificant point.
The majority leader has left his post
here upon -the floor to consult. But
what I would ask of the majority
leader at such time as he is able to re-
spond on the time of the opposition is
whether or not he agrees that there is
nothing in the amendment that he has
proposed that would preclude the
Senate when it discovers as it did in
this case of this INF Treaty from
clearing up ambiguity by resort to the
negotiating record.
Indeed, I see my friend, the distin-
guished Senator from Michigan, on
the floor. I would ask if he would be
kind enough to respond to that ques-
tion and in fairness, since he has just
come upon the floor, let me state to
him that both the majority leader and
I have made reference in opening com-
ments to the negotiations that took
place last evening in his office.
I have made the comment that rep-
resentations were made at that time
by the Senator from Michigan, the
majority leader, the Senator from
Georgia, the Senator from Maine, and
others, seeking to provide reassurance
that this one /eaves unresolved the
debate on the legally correct interpre-
tation of the ABM Treaty.
The majority leader has responded
in the affirmative to that question.
The question that I would ask now
to the Senator from Michigan or to
the majority leader, is it not also true
that we agreed last night that there is
nothing in the Byrd amendment that
would preclude the Senate from
having resort to the negotiating record
to clarify omissions or ambiguities as
indeed we did in the two instances
that I have cited here?
' Mr. LEA/ IN. I would answer at least
on my part that resort to the negotiat-
ing record is not precluded by this
amendment. I also would comment,
since my friend from California raised
the issue relative to the AMB Treaty,
that the principles which are set forth
in the Byrd amendment, indeed the
Biden amendment as well, apply to all
treaties.
Mr. WILSON. I am constrainted to
point out to my friend?
Mr. LEVIN. But if I could finish my
sentence, I think the second half will
give my friend more comfort than the
first half.
Mr. WILSON. That is true, and I am
compelled to point out why and, that
is, because it is a variance not only
with the earlier response of the major-
ity leader but it is also at variance
with the repeated reassurances re-
ceived last night that the language of
the Byrd substitute to the Biden-Pell
amendment?and I am emphasizing
that we are discussing now what is
before us, the Byrd substitute, not the
Biden-Pell for which it has been sub-
stituted?was not intended to resolve
the debate on the ABM Treaty.
Mr. LEVIN. The second half of my
sentence, I think, will give you some
comfort in that regard.
Mr. WILSON. I beg your pardon, I
did not realize I had interrupted you.
Mr. LEVIN. As I indicated, the prin-
ciples set forth in this amendment
apply to all treaties. That is why we
fought so hard to keep the words in
this amendment "the treaty clauses of
the Constitution."
There was a big battle over those
words, whether they would be in or
out. Those that believe very strongly
May 26, 1988
in this amendment insisted that those
words be kept in, because we believe
these principles apply to all treaties.
The reason that this amendment
does not resolve the ABM dispute,
however?and it is not intended to re-
solve the ABM dispute?is because the
proponents of the broad interpreta-
tion of the ABM Treaty have 'argued
that there was, at a minimum, ambigu-
ity in the representations which were
made to the Senate at the time of that
ratification debate.
Therefore, the proponents of the
broad interpretation of the ABM
Treaty are free to argue that there
was no authoritative representation
provided by the President to the
Senate relative to the question of fu-
turistics at the time of the ABM
Treaty ratification debate. That is the
reason why the explicit language of
paragraph 4 of the Byrd amendment is
helpful to you as well, because that
makes it clear that if a question arises
as to the interpretation of a provision
of the treaty on which no common un-
derstanding was reached?to wit: to
which there was no authoritative rep-
resentation provided to the Senate by
the Executive?that then the provi-
sion shall be interpreted in accordance
with applicable U.S. law.
The proponents of the broad inter-
pretation of the ABM Treaty believe
and have argued that there was no au-
thoritative representation provided by
the President relative to that issue.
Those of us who have supported the
narrow or traditional view of the ABM
Treaty have argued that indeed there
was authoritative representation made
by the President relative to that issue.
But that issue is not resolved. The
issue simply is not resolved because,
again, you are free to argue there was
no authoritative representation and
those of us who believe in the tradi-
tional interpretation of ABM are free
to argue that there was authoritative
representation that was made.
So, in that important sense, the
ABM issue is not intended to be re-
solved by this language?I do want to
give you a clear answer to your ques-
tion?nor does this language in any
way imply the opposite relative to the
ABM Treaty interpretation issue.
It was clear in the report language?
and I think here my friend would
concur with me?it was clear in the
report language, and it is clear from
the sponsors of this amendment, that
the absence of this language during
the ABM debate was not intended to
imply anything relative to the correct
interpretation of the issue in the ABM
debate. And that is the other reason
why we insisted that the language
"treaty clauses of the Constitution"
remains, and that is a very important
part of this amendment.
The principles of this amendmen
apply to every treaty, including th
ABM Treaty, but the application
- the principles is where there is no re
olution because of the difference as
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
whether or not there was authorita-
tive representation or not.
Mr. WILSON. I thank my friend
'from Michigan. But let me ask him a
further question about paragraph 4.
Though he was not the author of the
paragraph, I think he is competent to
respond as an able advocate and a
craftsman with the language whose
skills I admire. Is it, in your judgment,
a correct statement that paragraph 4,
by seeking to prescribe a solution to
those situations that arise subsequent
to ratification where there is a ques-
tion as to interpretation upon which
there was no common understanding,
is a first step, but does not totally re-
solve how we should proceed in in-
stances where there is no agreement
that there was no common under-
standing?
Mr. LEVIN. Where there is disagree-
ment as to whether there was a
common understanding or not, or, to
put it mor l precisely, where there is a
disagreement as to whether or not
there were "authoritative representa-
tions which were provided by the
President and his representatives to
the Senate and its committees, in seek-
ing Senate consent to ratification,"
then the parties are free to take their
best position. The people who claim
there was no authoritative representa-
tion are then going to argue para-
graph 4 applies. The Senators or
others who believe that there were au-
thoritative representations provided
'by the President will argue that para-
graph 2 applies.
Mr. WILSON. So, in short, my
friend from Michigan thinks para-
graph 4 is descriptive of the situation
in which the Senate found itself last
year when we devoted considerable
time and eloquence?at least that was
our view of it?to this question of the
legally correct interpretation of the
ABM Treaty and have come to no res-
olution.
I look at paragraph 4 and it seems to
me it describes that irresolution. It
states that if there is agreement that
there was no common understanding,
or acknowledged that something has
come up which was totally omitted,
where there is agreement that there
was no common understanding, this
prescribes that there shall be a deter-
mination made in accordance with ap-
plicable United States law. But in the
situation where there is not an agree-
ment that there was no common un-
derstanding and rather one side is con-
tending that there was common under-
standing and the other contends that
deed there was not, then we have
he present impasse as it relates to the
M Treaty's legally correct interpre-
tion.
Mr. LEVIN. I would not agree with
at formulation.
.
WILSON. Well, how do you get
the point without there being
eement that there was no common
erstanding?
. LEVIN. If there is no agreement
o whether there is a common un-
derstanding, the parties that believe
there was are free to argue that there
was under paragraph 2. The parties
that feel that there was no common
understanding?to wit: that there was
no authoritative representation pro-
vided by the President?are free to
argue paragraph 4.
But I could not agree with your for-
mulation that if there is no agreement
as to whether or not there was a
common understanding, then para-
graph 4 applies. Quite the opposite.
Mr. WILSON. No. No. I think my
friend misunderstood. My criticism of
paragraph 4?which I recognize' to be
an effort by the majority leader and
Senator COHEN and others to try to
give resolution in that situation subse-
quent to ratification where it is agreed
that there was no common under-
standing?does not deal with the situa-
tion that presently exists with regard
to the ABM Treaty where there is in
fact no agreement about there having
been common understanding. *
So I think the point is adequately
made. Paragraph 4 is somewhat useful
in a very limited application. It will
assist in those situations where there
is a common acknowledgment, where
there is no dispute that something has
come up, either as a conflict in the tes-
timony of authoritative representa-
tions or simply an omission. In those
situations where there is no dispute,
where it is agreed that there was no
common understanding, paragraph 4
is useful.
Mr. LEVIN. I agree with that.
Mr. WILSON. But in another situa-
tion, it does not deal with that ques-
tion, the question that is before us
with respect to the ABM Treaty. ?
Mr. LEVIN. It does not solve the dis-
pute.
Mr. WILSON. I thank my friend.
Madam President, how much time
remains to the opposition?
The PRESIDING OFFICER. Three
minutes and?excuse me. I was reading
the eight as a zero.
Eighty-three minutes and 23 sec-
onds.
Mr. WILSON. I thank the Chair.
Your first response, I confess, struck
chill into my heart.
The PRESIDING OFFICER. The
Chair apologizes.
Mr. WILSON. Madam President, I
would reserve the balance of my time.
Mr. BYRD. Madam President, I
yield to the distinguished Senator 10
minutes of my time if that would be of
assistance to him.
We have chewed up a good bit of his
time in responding to questions on his
time.
Mr. WILSON. Madam President, I
thank the majority leader for his cus-
tomary graciousness and generosity
and gratefully accept the 10 minutes.
Mr.. BYRD. Mr. President, against
whom is time running at this point?
The PRESIDING OFFICER (Mr.
ADAMS). The Chair will say to the ma-
jority leader, time is running equally.
S 6729
Mr. BYRD. I hope the time will not
run equally against Mr. HOLLINGS, who
will be in control of 20 minutes.
I ask unanimous consent that Mr.
Hotiawas retain his 20 minutes.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
Mr. BYRD. And I ask unanimous
consent that throughout the remain-
der of the debate on these amend-
ments?"these" meaning the first- and
second-degree amendments?that
where it runs equally it not be charged
in any way against Mr. HOLLINGS' 20
minutes.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, in the in-
terest of utilizing our time to the very
best advantage on both sides I wonder
If any Senators on my side of the ques-
tion wish to have time at this point so
that we are not atrophying. Does Mr.
PELL or Mr. NUNN OT does Mr. LEVIN or
does Mr. SARBANES or does anyone
wish time from my side?
Mr. President, I yield 5 minutes to
Mr. PELL.
The PRESIDING OFFICER. The
Senator from Rhode Island is recog-
nized for 5 minutes.
Mr. PELL. I thank the majority
leader and compliment him on the
way he has worked on the Biden
amendment and improved the Biden
amendment?Biden condition, I should
say, rather.
I would also be remiss if we did not
pay tribute to Senator BIDEN. Pehaps
he is watching this debate in his room,
where is recuperating at home in Dela-
ware. I hope he is. I know we all join
in wishing him Godspeed.
In any case, these hours on the
Senate floor are really the result of
his imagination and depth of thought
in trying to handle the problem that
we face.
Because the issue addressed by the
Biden condition and the Byrd amend-
ment is not a struggle over who inter-
prets treaties. It is the President's re-
sponsibility to interpret and imple-
ment treaties for the United States. At
issue is the question of what limits are
to govern the President's latitude in
exercising that power.
The Foreign Relations Committee
amendment and the Byrd amendment
confirm that authoritative representa-
tions by the executive branch do
indeed have binding significance. The
President's representatives simply
cannot explain a treaty to the Senate
in one way prior to ratification and
then seek to change that explanation
10 years later without the approval of
the Senate. The Foreign Relations
Committee amendment and the Byrd
amendment prevents such as action.
The issue before the Senate is not
the broad versus the narrow interpre-
tation of the ABM Treaty. The issue is
the Sofaer doctrine, which essentially
allows the President to reinterpret a
treaty unilaterally. The Byrd amend-
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S 6730 CONGRESSIONAL RECORD ? SENATE
ment and the committee amendment
prevent reinterpretations. However, to
reject the validity of reinterpretations
is not to resolve the ABM Treaty dis-
pute, but simply to narrow that dis-
pute to a debate over the facts of what
actually transpired in 1972.
I hope the Senate does not digress
on this question into a replay of the
ABM Treaty dispute. The real issue is
whether the Senate will reject the
notion that the Executive can reinter-
pret a treaty. Heretofore, nobody sug-
gested that the Executive could rein-
terpret a treaty.
I urge my colleagues to support the
Biden amendment as amended by Sen-
ator BYRD. A vote for this amendment
is a vote to uphold the Senate's treaty
power under the Constitution and to
reestablish the principle that a Presi-
dent cannot walk away from the
shared understanding between the Ex-
ecutive and the Senate reached at the
time of a treaty's ratification. This
notion is central to the Senate's role in
the Constitution and I hope this
amendment passes through bipartisan
support.
I would add that at any, time in the
future if an Executive wanted to rein-
terpret a treaty, he would probably try
to engage in the same practice: Find a
lawyer who would invent the doctrine
and redo it. This is what lawyers are
very often hired for, to give the inter-
pretation that their client wishes.
So, even with the passage of this
amendment, it does not mean that an-
other President, another year, another
decade, might not attempt the same
legerdemain. But I would add that I
think the passage of this amendment
as amended would make that more dif-
ficult.
Mr. President, I ask unanimous con-
sent that there be printed in the
RECORD the portion of the committee
report which deals with the issue of
treaty interpretation.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
IX. TREATY INTERPRETATION (CONDITION
ADOPTED BY THE COMMITTEE)
While intent on opposing any unnecessary
encumbrance on the resolution of ratifica-
tion, the Committee felt compelled to ad-
dress the issue of treaty interpretation. As
Senator Cranston put it, the Committee
acted on this issue "by necessity, not by
choice." The Committee did so by approving
a formal Condition which affirms certain
constitutional principles relating to the
Treaty Power, and requires that these prin-
ciples govern U.S. interpretation of the INF
Treaty.
? Some Senators questioned the Commit-
tee's need to act on the treaty interpreta-
tion issue, particularly in the context of a
treaty that will mandate a, relatively prompt
three-year dismantlement of intermediate-
range missiles. Is interpretation of the INF
Treaty really an issue? The Committee's
answer is affirmative, for three reasons:
First, the issue is indeed relevant to the
INF Treaty. While involving a three-year
missile elimination phase, the INF Treaty is
designed to ban a defined class of missiles
permanently. Thus, the Treaty's limitations
and prohibitions will entail the complexities
of interpretation and implementation over a
period of unlimited duration.
Second, the issue can hardly be avoided.
The Committee could not sidestep the fun-
damental constitutional question raised by
the Administration's recent promulgation of
an extraordinary doctrine which asserts
wide presidential latitude for changing the
interpretation of a treaty, notwithstanding
what the Senate may have been told in con-
senting to ratification. To ignore this ques-
tion, while dealing with a major treaty,
could imply acquiesence in the doctrine.
Third, the inclusion of a Condition on
treaty interpretation represented the least
problematic means of handling a potentially
grave problem for the INF Treaty. In the
absence of a Condition reaffirming tradi-
tional principles of treaty interpretation?
under which the Senate can accept Execu-
tive explanations as having binding signifi-
cance?the Senate would -face the alterna-
tive of considering countless other Condi-
tions designed to formalize the Senate's un-
derstanding of various INF Treaty provi-
sions.
A. THE TREATY POWER
The Constitution's Treaty Clause (Article
II, section .2, clause 2) states that the Presi-
dent "shall have Power, by and with the
Advice and Consent of the Senate, to make
treaties, provided two-thirds of the Senators
present concur." Because treaties constitute
solemn international commitments of the
United States, and hold domestic status as
"supreme Law of the Land," the Senate's
shared role in the Treaty Power is a central
constitutional provision. As such, it repre-
sents a principal means by which the Senate
participates in the shaping of American for-
eign policy.
In the words of Alexander Hamilton,_ the
Framers of the Constitution considered the
division of the Treaty Power between the
Executive and the Senate to be "one of the
best digested and most unexceptional parts
of the plan." It would have been "utterly
unsafe and improper," Hamilton wrote, to
entrust the power of making treaties in the
President alone. Hamilton's most famous
dictum applied directly to the Treaty
Power:
The history of human conduct does not
warrant that exalted opinion of human
virtue which would make it wise in a nation
to commit interests of so delicate and mo-
mentous a kind as those which concern its
intercourse with the rest of the world to the
sole disposal of a magistrate, created and
circumstanced, as would be a president of
the United States.
The essence of the Treaty Power is that
the President and the Senate are partners
in the process by which the United States
enters into international obligations. It is
fundamental to the logic of the Treaty
Clause that it does not envisage that the
President may unilaterally re-make a treaty.
If he could, the Senate's portion of the
shared power inherent in the Treaty Clause
would be nullified.
B. ORIGINS OF THE ISSUE
Last year. in seeking to justify the Admin-
istration's "broad" interpretation of the
1972 ABM Treaty. the State Department
Legal Adviser, Mr. Sofaer, advanced two
claims?one factual, the other constitution-
al:
(1) The factual claim is that the entire
ABM Treaty, in design, genesis, and imple-
mentation, was fraught with ambiguity: am-
biguity in what the negotiators agreed to,
ambiguity in the text they produced, ambi-
guity in the Executive presentation to the
Senate, ambiguity in the Senate's under-
standing of the Treaty, and ambiguity in
the subsequent practice of the parties.
May 26, 1988
(2) The constitutional claim is that what
the Senate is told in the process of consent-
ing to a treaty is not in itself of binding sig-
nificance in determining the President's ob-
ligation in carrying out the treaty.
The constitutional claim was manifest in a
number of statements made by Mr. Sofaer,
but none more crystallized the issue for
Senators than this assertion, made during
joint Foreign Relations-Judiciary Commit-
tee hearings in early 1987: "When [the
Senate] gives its advice and consent to a
treaty, it is to the treaty that was made, ir-
respective of the explanation [the Senate]
was provided." Questioning how a treaty
could be "made" prior to the Senate's con-
sent, Senators grew increasingly concerned
about the Administration's concept of the
Treaty Power.
In 1987, the Foreign Relations Committee
devoted considerable time and attention to
the ABM Treaty dispute in both of these di-
mensions: factual and constitutional."
Having done so, the Committee found no
reason, while considering the INF Treaty, to
debate again the overall validity of the Ad-
ministration's assertion of a "broad" inter-
pretation of the ABM Treaty as opposed to
the traditional "narrow" interpretation.
Indeed, in the Committee's view, that issue
is being adequately addressed elsewhere:
First, as to U.S. defense policy, in pursu- "
Ing the development and testing of ABM
systems, that issue is now being addressed
through the 'normal give-and-take of the
U.S. defense budget process. By means of an
amendment to the FY 1988-89 DoD authori-
zation, Congress has employed the power of
the purse to assert its views, and similar
amendments in the future will succeed or
fail on the basis of policy debate.
Second, and even more to the point, it has
become patently clear that what is permit-
ted by the ABM Treaty will ultimately be
decided by superpower negotiation. Such
negotiation is virtually inevitable?and the
need for it is now part of the Reagan Ad-
ministration's own position?because the
United States, as a precondition of agreeing
to major reductions in strategic offensive
arms, will be required by self interest to
achieve its own clear and detailed under-
standing of which kinds of Soviet ABM sys-
tems to anticipate in the future strategic en-
vironment. Any Treaty amendment would,
of course, be subject to Senate advice and
consent.
In sum, the future of U.S. policy with
relard to ABM systems, and U.S. participa-
tion in the ABM Treaty, will be addressed in
the budget process and in negotations with
the Soviet Union. The Committee was unan-
imous in believing that its action on the INF
Treaty required no resolution of the "broad-
versus-narrow" ABM Treaty debate.
The one legacy of that debate which the
Committee could not overlook, however, was
the Administration's constitutional asser-
tion of a clearly delineated and unprece-
dented doctrine under which the President
has wide latitude for treaty "reinterpreta-
tions," notwithstanding what the Senate
may have been told in the course of grant-
ing consent to ratification. The Committee
"For the Foreign Relations Committee's actions
and views with regard to the overall ABM Treaty
dispute, see the Committee's March-April 1987
Joint hearings with the Judiciary Committee, enti
tied "The ABM Treaty and the Constitution," an
the Committee's September 1987 report on S. Re
167, "The ABM Treaty Interpretation Resolution
The Committee wishes to acknowledge that
the conduct of those hearings, the drafting of th
report, and the creation of the Condition herein
scribed, the Committee received extensive and
valuable assistance from its former legal co
Professor Michael J. Glennon.
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May 26, 1988 CONGRESSIONAL RECORD SENATE
was intent upon addressing and refuting
this effort at Executive enlargement of its
share of the Treaty Power.
As Senator Sarbanes emphasized, "We did
not raise this issue to begin with; it was in
effect raised to us."
Thus, those who have described the Com-
mittee's interest in the treaty interpretation
issue as an effort to refight the old ABM
battle have missed the point. The Commit-
tee is looking forward?to the succe&sful im-
plementation of the INF Treaty and other
treaties?and looking backward only to a
crucial constitutional provision established
200 years ago, which the Committee feels
duty-bound to uphold and affirm.
C. DESCRIPTION OF THE SOFAER DOCTRINE
In defending its new, "broad" interpreta-
tion of the ABM Treaty, the Reagan Admin-
istration employed a dual-track approach:
(1) In the context of international law, it
used a new reading of the ABM Treaty text
and of internal U.S. Governxnent memoran-
da from 1971-72 (the "negotiating
record" 14) as a basis for asserting that the
two superpowers had not actually agreed to
limit the development of any ABM systems
based on new technologies.
(2) In the context of domestic, constitu-
tional law, it argued that alleged ambigu-
ities in the Treaty text and in the negotiat-
ing history has been reflected in the Execu-
tive's presentation to the Senate?and but-
tressed this claim with a newly-minted doc-
trine which asserted wide Executive latitude
for "reinterpretation" of treaties.
The argument of pervasive ambiguity?in
the ABM Treaty's design and its presenta-
tion to the Senate?would have been suffi-
cient, in terms of logic, to assert Executive
latitude for a "broad" interpretation of the
Treaty. Such an approach would have em-
phasized that the ABM Treaty was being in-
terpreted "within the bounds of the ambigu-
ity in the original shared understanding"
held by the Executive and the Senate,
rather than "reinterpreted." 15
The additional assertion, however,
amounted to a new constitutional doctrine?
which the Committee will here call the
Sofaer Doctrine?that effectively claims an
Executive right of treaty amendment dis-
guised as treaty interpretation.
The essence of the Sofaer Doctrine is the
assertion that the Executive is not bound, in
implementing a treaty, by what it has told
.4 Under international law (and also under domes-
tic law), the primary source of interpretation is the
text, which should be interpreted in accordance
with the ordinary meaning to be given the treaty's
terms in light of their context and in light of the
treaty's object and purpose. Another major source
of interpretation under international law is practice
under the treaty. But the negotiating history?
which refers to what happened, as opposed to any
particular set of documents?is also recognized as
having some interpretive significance insofar as it
may reflect what the parties commonly understood
about the meaning of the text.
For a discussion of the complexities of defining
what a "negotiating record" might be, see the Com-
mittee's September 1987 report on S. Res. 167, pp.
49-51. See as? Restatement of the Law (3d), For-
eign Relations Law of the United States, The Amer-
ican Law Institute, 1988; and Reports of the Inter-
national Law Commission, United Nations, 1966.
"Because of its interest in avoiding a renewed
ebate over the "broad-versus-narrow" interprets-
ion of the ABM Treaty, the Committee will not
onunent here on its evaluation of the persuasive-
ess of the factual case for the "broad" interprets-
n; i.e., the assertion that the ABM Treaty?in
nesis, design, and presentation to the Senate?
suffused with ambiguity. The Committee notes
y that the assertion of such pervasive ambiguity
the original "shared understanding" of the
aty, held by the Executive and the Senate, is
lly sufficient to make the case for a "broad"
retation without any need for innovative con-
ional assertions.
the Senate in seeking consent to ratifica-
tion. The Executive is only bound, according
to the doctrine, by a particular interpreta-
tion of a treaty's meaning if that interpreta-
tion meets three criteria: the particular in-
terpretation must have been (1) "generally
understood" by the Senate, (2) "clearly in-
tended" by the Senate, and (3) "relied
upon" by the Senate.
In a letter dated March 17, 1988 (see Ap-
pendix), White House Counsel Culvahouse
described these criteria as "settled princi-
ples." But in fact they have been asserted
with no constitutional basis? no reference
to the intent of the Framers, to historical
precedent, to case law?no reference to any
source of constitutional authority. These al-
leged "principles" have been invented
during this Administration, from which they
emerged in the course of Mr. Sofaer's vari-
ous presentations to Congress."
Moreover, while such terms as "generally
understood," "clearly intended," and "relied
upon" may appear straight forward and ap-
pealing, in practice such criteria would be so
difficult to meet that the Executive would
almost never be bound by its own presenta-
tion to the Senate:
(1) How many Senators must speak on a
given interpretation before it can be proven
that the Senate "generally understood"
that interpretation?
(2) How, unless the Senate has affirmed a
particular intepretation by means of a
formal condition, can it ever be demonstrat-
ed that the Senate "clearly intended" a par-
ticular interpretation?
(3) And if "relied upon" means (as Admin-
istration officials have suggested) that a
particular interpretation was crucial to the
Senate's action in approving a treaty or re-
fraining from the imposition of a formal
condition, how can that negative proposi-
tion?"The Senate wouldn't have done x if
It weren't for y"?ever be proven?
Yet, under the Sofaer Doctrine, all three
of these difficult proofs are required if a;
particular treaty interpretation is not to be
subject to "reinterpretation."
Thus, the Sofaer Doctrine is' in effect a
claim of wide Executive latitude in treaty
interpretation by means of the assertion, in
the context of domestic law, of unreason-
able criteria for what may not be "reinter-
preted." If a particular interpretation of a
particular provision of a treaty does not
meet these criteria, it apparently is sub-
ject?according to the Sofaer Doctrine?to
any interpretation the President may wish
to place upon it.
As subsequent discussion will underscore,
the import of this assertion is that the
Senate is not a partner in the treaty proc-
ess, but essentially an adversary?an on-
looker of secondary status which, while it
may derive some momentary power from its
ability to block a treaty or impose formal
conditions on its consent, must take extraor-
dinary precautions if what it is told by the
Executive about a treaty is to be determina-
tive of the Executive's obligations in inter-
preting and implementing that treaty.
It bears note that there is no necessary re-
lationship between the Sofaer Doctrine and
a treaty's "negotiating record." By way of
example, one may imagine circumstances in
which the Sofaer Doctrine would be assert-
ed but the "negotiating record" would play
no role. Let us say that President Reagan's
successor and Secretary Gorbachev wished
to "reinterpret" the INF Treaty in a
manner inconsistent with what the Senate.
"See, for example, Mr. Sofaer's testimony to the
Senate Foreign Relations Committee In the previ-
ously cited hearing volume entitled "The ABM
Treaty and the Constitution."
S 6731
has been told in consenting tu ratification.
The Sofaer Doctrine would play the role of
helping the administration loosen its obliga-
tions under domestic law, while as between
the parties there would be no resistance to
the new meaning being put on existing
words and thus no need to justify the
change by reference to a "record." Indeed,
under this scenario the "record" would be
assiduously disregarded, because it reflected
a mean contrary to that which the parties
wished to adopt.
Against this background one can examine
Mr. Sofaer's provocative declaration that
"When [the Senate] gives its advice and
consent to a treaty, it is to the treary that
was made, irrespective of the explanations
[the Senate] was provided."
With the Senate's role denigrated by the
Sofaer Doctrine, the essence of the treaty
from the U.S. perspective becomes not what
the Executive and the Senate jointly under-
stood at the outset but what the Executive at
any moment wants to assert was agreed to
with the other party. What little constitu-
tional constraint there is on any particular
interpretation would require an Executive
determination that the Senate has fulfilled
the Sofaer Doctrine criteria with regard to
that interpretation?criteria the Senate
rarely fulfills; This, under the Sofaer model,
whatever the President can assert within
the context of international law acquires a
de facto supremacy over constitutional law.
There is, of course, a central defect in Mr.
Sofaer's supposition that the President uni-
laterally "makes" treaties which the Senate
subsequently is asked to approve. Constitu-
tionally, no treaty is "made" until the
Senate has given its consent. This is how a
treaty becomes part of "the supreme Law of
the Land."
The Legal Advisers' statement implies
that the meaning of a U.S.-Soviet treaty is
to be gleaned not by examination of what
the President and the Senate jointly under-
stood, but by examination of what the
President and the Soviets agreed upon?re-
gardless of what the President may or may
not have told the Senate. This is tanta-
mount to saying that a U.S.-Soviet treaty
becomes the supreme law of the United
States with the device and consent of the
Soviet Union, The Constitution provides
otherwise.
D. PROBLEMS WITH THE SOFAER DOCTRINE
The basic problem with the Sofaer Doc-
trine is that it is founded on the faulty
premise that the Senate is not an integral
part of establishing the meaning of a treaty
under U.S. constitutional law?except inso-
far as the Senate does so through affirma-
tive steps which impose restrictions on Ex-
ecutive latitude. The doctrine undercuts the
basic model of treaty-creation: that the Ex-
ecutive negotiates and signs a treaty," ex-
plains its proposed treaty to a listening
Senate, and then on that basis is accorded
consent to ratify the treaty that has been
explained.
Under the Constitution, the President
may 'only ratify a treaty to which the
Senate advised and consented. And it must
be taken as axiomatic that the Senate
cannot consent to that which it did not un-
derstand. Accordingly, the operative princi-
ple of treaty-making under the Constitution
must be that, as co-makers of a treaty for
the United States, the Executive and the
Senate share a common understanding of a
"The signing of a treaty does not bring the
treaty into force. Only ratification can do that. Dis-
cussion of this and related concepts is contained in
the Appendix section entitled "Principles of
Treaty-Making and Interpretation."
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S 6732 CONGRESSIONAL RECORD ? SENATE
treaty which has binding significant domes-
tically as the treaty, upon ratification, be-
comes an integral part of United States law.
In the establishment and determination of
that common understanding, the concept of
legislative intent must be as applicable to
treaties as it is to statutory law, in which
Intent may be explicit or implicit.
Explicit understandings regarding a trea-
ty's meaning are manifest in formal condi-
tions to the Senate's consent. These condi-
tions include amendments to the text of a
treaty as well as amendments to the resolu-
tion of ratification, such as "reservations,"
"understanding," and the like.
Implicit understandings represent Senate
agreement with and acceptance of the Ex-
ecutive's explanations of the treaty. Where-
as explicit understandings may at times
entail the Senate's imposition on the Execu-
tive of a meaning not originally intended by
the Executive, implicit understandings
never do; they can only reaffirm the mean-
ing presented by the Executive.
Although not formalized, implicit under-
standing must necessarily be equal in sig-
nificance to explicit understandings. To
accord them lesser significance would be il-
logical because implicit understandings com-
monly occur precisely where there is no dis-
agreement as to meaning and where no
issue has arisen. Such understandings are
reflected in the various materials tradition-
ally described as legislative history. These
sources include hearings and committee re-
ports, as well as debates transcribed into the
Congressional Record. Such sources must be
regarded as indicia of legislative intent as
much for a treaty as for a statute.
What is crucial is that legislative intent,
with regard to a treaty as well as -a statute,
is expressed not only in language drafted by
legislators but in unchallenged communica-
tions of the Executive. Under longstanding
principles of textual construction, Executive
communications to the Congress concerning
the meaning of a text are evidence of the
meaning of that text if Congress (or the
Senate) acquiesces in that meaning. In
other words, the legislative branch is
deemed to be placed on notice by the Execu-
tive that certain words will be construed in
a certain manner. If Congress wishes a dif-
ferent meaning to obtain, it may act so as to
effect that different meaning. If -Congress
does not act, however, it is properly deemed
to have accepted?and to intend?the mean-
ing communicated by the Executive.
In testimony to a joint hearing of the Ju-
diciary and Foreign Relations Committees,
Professor Louis Henkin, chief reporter of
the new Restatement of U.S. Foreign Rela-
tions Law,18 summarized this concept as fol-
lows: "Where several [Executive] state-
ments are made and there is general accept-
ance of their tenor, that is the Senate un-
derstanding. That is true in the case of
Senate consent to a treaty, as it would be in
the legislative history of a statute."
Clearly, in determining whether the
Senate consented to the ratification of a
treaty pursuant to an implicit uncterstand-
ing, a rule of reason must apply. Obvivsly,
where the indicia of Senate intent or under-
standing (including unchallenged Executive
communications or explanations) are few or
inconsistent, no implicit Senate intent can
reasonably be said to exist. On the other
hand, where the indicia of intent (again, in-
cluding unchallenged Executive communica-
tions or explanations) are several and large-
ly 'consistent, an implicit intent can reason-
" The full title of this preeminent compendium
of U.S. law in the realm of foreign affairs is Re-
statement of the Law r3d), Foreign Relations Law
of the United States, 1988.
ably be concluded to exist. In such circum-
stances, the President is bound constitution-
ally to regard that intent as an implicit
Senate understanding, and therefore an im-
plicit condition of the Senate's consent. The
Chief Executive cannot bring the treaty
into force unless it reflects that condition,
and subsequent Presidents must interpret
the treaty subject to that intent.
The essence of the Sofaer Doctrine is to
reject this concept of legislative intent as it
has been normally understood, and to re-
place it with a requirement that the Senate
act affirmatively to formally demonstrate
what is "generally understood, clearly in-
tended, and relied upon" regarding every
provision of a treaty, lest that provision be
subject to any interpretation a President
may later prefer.
E. IMPLICATIONS OF THE SOFAER DOCTRINE
In very practical terms, the Sofaer Doc-
trine, if accepted, threatens two far-reach-
ing and dangerous consequences:
(1) Nullification of the Senate's Treaty
Power. A presidential right to adopt a dif-
ferent interpretation of a treaty, irrespec-
tive of the understanding on which the
Senate based its consent, would tend to nul-
lify the Senate's share of the Treaty Power
and thus undermine a basic provision of the
Constitution.
(2) Paralysis in Treaty-Making. The Sen-
ate's only recourse, to prevent its share of
the Treaty Power being nullified, would be
to attach elaborate and numerous condi-
tions to treaties in order to have the Sen-
ate's understanding become an integral and
explicit part of the ratification documents.
Such procedure could easily overburden the
treaty process to the point of paralysis.
F. THE INF TREATY AND THE SOFAER DOCTRINE
In the context of the Senate's consider-
ation of the INF Treaty, two letters?from
Secretary of State Shultz and from White
House Counsel Culvahouse (both reprinted
in the Appendix)?became the focus of
Senate efforts to deal with the Administra-
tion's constitutional assertions.
Some originally saw in the Shultz letter
(dated February 9, 1988) an indication of
Administration willingness to retreat from
its assertion of the Sofaer Doctrine, and
thus reacted with disappointment when the
doctrine was clearly reasserted in the letter
(dated March 17, 1988) signed by White
House Counsel Culvahouse. Under analysis,
however, it becomes clear that the Adminis-
tration has remained consistent in its adher-
ence to the Sofaer Doctrine.
Accordingly the Committee agrees with
the Culvahouse letter (as he stated in a
brief follow-up letter dated March 22, 1988)
that the Shultz and Culvahouse letters are
consistent on the question of treaty inter-
pretation. The Shultz letter tiptoed around
the Sofaer Doctrine; the Culvahouse letter
simply stated the Administration's views on
the Sofaer Doctrine clearly and boldly.
The key to understanding this consistency
Is to recognize that the Administration con-
ceded virtually nothing in the Shultz letter,
which contained only these three items:
(1) an assertion that Administration testi-
mony on the INF Treaty is "authoritative"
(which appears to mean nothing more than
dependably accurate);
(2) a kind of admonition that, because of
these dependably accurate statements, the
Senate need not incorporate Executive ma-
terials and testimony in the resolution of
ratification?but no clear statement that
this or a future Administration would be
bound in any legal sense by such an "au-
thoritative" presentation;
(3) a promise that the Reagan Administra-
tion would not depart from the meaning of
the INF Treaty as presented to the Senate.
May 26, 1988
These three elements offer absolutely
nothing by way of any agreement on princi-
ples as to what would bind the Executive.
Thus, while the Culvahouse letter seemed
to some to be a step backward, in fact it
served only to articulate the premises un-
derlying the vague and essentially noncom-
mittal language in the Shultz letter. The es-
sence of the Culvahouse letter is its clear re-
iteration of the Sofaer Doctrine, which as-
serts wide Executive latitude for "reinter-
pretations" by promulgating unreasonable
criteria for what provisions in a treaty may
not be "reinterpreted":
As matter of domestic law . . . the Presi-
dent is bound by shared interpretations
which were both authoritatively communi-
cated to the Senate by the Executive and
clearly intended, generally understood and
relied upon by the Senate in its advice and
consent to ratification. [Emphasis added.]
In criticizing the draft Biden Condition
under considerltion by the Committee, the
Culvahouse letter agreed that U.S. treaty
interpretation must be based on the "shared
understanding" of the Executive and the
Senate when a treaty is made. But it reject-
ed any notion that such "shared under-
standings" of binding significance could be
found by examining the record of Executive
testimony:
[The Biden Condition] apparently would
define that shared understanding as encom-
passing all statements made by officials of
the Executive branch during ratification
proceedings. These statements presumably
include and attribute equal dignity to the
Secretary of State's definitive article-by-ar-
ticle analysis and to the extensive testimony
of Cabinet members, treaty negotiators and
other Executive branch officials, as well as
to the Administration's answers to over
1,000 questions submitted by Members of
the Senate, no matter how trivial or unim-
portant the issue may be to the Senate's
advice and consent deliberation.
In testifying to the Foreign Relations
Committee, Senator Nunn saw this sentence
as casting doubt on the "authoritativeness"
of all Executive branch communications
concerning the INF Treaty. But. in fact the
Culvahouse letter dcies not deny that all Ex-
ecutive branch communications are "au-
thoritative." Rather, it denies that all "au-
thoritative" communications meet the crite-
ria of the Sofaer Doctrine as to what is
binding on the Executive.
This confusion apparently rests on Sena-
tor Nunn's eminently reasonable premise
that "authoritative" testimony should have
binding significance. But this is a premise
that the Administration has never formally
acknowledged?in the Shultz letter or any-
where else."
G. PURPOSE AND CONTENT OF THE BIDES
CONDITION
The purpose of the condition drafted by
Senator Biden?and offered on his behalf by
Senator Cranston?is to reaffirm the long-
standing practice and long-standing princi-
ple that the "shared understanding" of the
Executive and the Senate, as reflected in
the Executive's formal representations, is
indeed fully binding?as opposed to binding
only with regard to those provisions and in-
terpretations which the Senate has gone to
extraordinary lengths to brand as crucial to
its consent, by. formal condition or some
?other means.
Unlike the Sofaer Doctrine, the Bider
Condition envisages the Executive and th
One individual exception was Arnbassa
Nitze, speaking spontaneously. See the final pa
graph of this section on "Treaty Interpretati
and also the Appendix of this report.
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
Senate not as adversaries in the treaty-
making process but as partners?co-makers
of the treaty on behalf of the United States.
While both the Biden Condition and the
Sofaer Doctrine rest upon the premise that
a "shared understanding" is required to
bind the Executive to a given interpretation
of a treaty, the crucial difference is that the
Biden Condition envisages that a "shared
understanding" will be reflected in all "au-
thoritative" statements by the Executive.
Under the Sofaer Doctrine, the Executive is
bound only by those "shared understand-
ings" which the Senate has somehow la-
beled crucial to its consent by fulfilling the
criteria of "generally understood, clearly in-
tended, and relied upon."
.The Committee's purpose, in adopting the
Condition, was to lead the Senate to affirm
a set of principles which reflect long-stand-
ing constitutional practice. By so doing, the
Senate can:
Avoid the need for other conditions per-
taining to specific interpretations of the
INF Treaty;
Repudiate a pernicious doctrine that was
asserted solely for a specific purpose; and
Establish a position with regard to future
treaties such that the Senate can avoid re-
peating the inclusion of a formal condition.
The Senate's 1988 action will have been suf-
ficient to reaffirm fundamental constitu-
tional principles of treaty-making.
The Biden Condition was drafted in con-
sultation with Professor Louis Henkin, chief
reporter of the Restatement of U.S. Foreign
Relations Law and the nation's most gener-
ally esteemed scholar in this field. The pro-
vision was designed to articulate and affirm,
as succinctly as possible, these constitution-
al principles reflected in time-honored prac-
tice: to wit, that the original shared under-
standing of the Executive and the Senate
must govern a treaty's subsequent imple-
mentation, and that such understanding is
reflected in the Executive's presentation to
the Senate.
* A key consideration in the drafting of the
Condition was to strike an appropriate bal-
ance between the general and the specific.
As stated earlier, the Committee did not
wish to see the Senate fight once again a
battle over the Administration's "broad" in-
terpretation of the ABM Treaty. The Com-
mittee therefore sought to direct this Con-
dition, to the maximum degree possible, to
the INF Treaty. At the same time, however,
the Committee's purpose, in addressing the
treaty interpretation issue, was not to erect
sui generis barriers against any "reinterpre-
tation" of the INF Treaty, but to affirm
principles that inherently apply to the INF
Treaty.
The Committee notes that, in one respect,
its action in including this Condition in the
INF Treaty's resolution of ratification was
unnecessary insofar as principles which in-
herently apply to the INF Treaty would
apply even in the absence of any Senate
action affirming them. Given the circum-
stances, however, the Committee judged
that to fail to affirm such principles could
suggest some degree of acquiesence in the
Sofaer Doctrine, which the Committee
Views as an Executive attempt to assert an
unconstitutional arrogation of the Treaty
Power. In the sense the Committee views
he Biden Condition, paradoxically, as both
nnecessary and highly significant.
The Condition, as approved by the For-
'gn Relations Committee, stipulates as fol-
ws:
hat this Treaty shall be subject to the
owing principles, which derive, as neces-
y implication, from the provisions of the
titution (Article II, section 2, clause 2)
the making of treaties:
(a) the United States shall interpret this
Treaty in accordance with the understand-
ing of the Treaty shared by the Executive
and the Senate at the time of Senate con-
sent to ratification;
(b) such common understanding is:
(i) based on the text of the Treaty; and
(ii) reflected in the authoritative represen-
tations provided by the Executive branch to
the Senate and its committees in seeking
Senate consent to ratification, insofar as
such representations are directed to the
meaning and legal effect of the text of the
Treaty;
(c) the United States shall not agree to or
adopt an interpretation different from that
common understanding except pursuant to
Senate advice and consent to a subsequent
treaty or protocol, or the enactment of a
statue.
The Condition also stipulates that "This
understanding shall not be incorporated in
the instruments of ratification of this
Treaty or otherwise officially conveyed to
the other contracting Party."
Several concepts in the Condition warrant
discussion:
Text of the Treaty: Both domestic and
international law give primacy in treaty in-
terpretation to the text of the treaty. Inter-
national law requires that a treaty be inter-
preted in accordance with the ordinary
meaning to be given the treaty's terms in
light of their context and in light of the
treaty's object and purpose. Domestic law
does not differ, and is also premised on the
? assumption that the Executive and the
Senate, as co-makers of a treaty for the
United States, will share a common under-
standing of a treaty's text. As a matter of
record, that common understanding of the
text will be reflected in the Executive's
formal presentation of the treaty to the
Senate: in formal presentation documents,
in prepared testimony, and in verbal and
written intercourse regarding the treaty's
meaning and effect.
In Professor Henkin's judgment, the
phrase "meaning of a treaty" in the original
draft Condition included the treaty text.
However, in order to underscore that the
Biden Condition had not (as alleged in the
Culvahouse letter) ignored the primacy of
the treaty text as a source of interpretation,
the draft Condition was altered at the initi-
ative of Senator Dodd, who worked in con-
sultation with _Professor Henkin to refine
language that would serve to preempt any
further criticism along such lines. Senator
Dodd's adjustments in the Condition also
served to underscore that the Executive's
"authoritative" representations have inter-
pretive significance only insofar as such rep-
resentations relate to the meaning and legal
effect of the treaty text. Thus are excluded
the Administration's answers to such ques-
tions as "What is the overall effect of the
INF Treaty on U.S. security?" and "What
will the Administration do to ensure an ade-
quate military balance in Europe?"
As Senator Dodd stressed, this wording
"binds the Executive only in those parts of
its presentation where it analyzes and ex-
plains the text itself, such as "That is what
these words mean." and "This is what their
effect is under international law"?in short,
where the Executive describes the precise
international obligation about to be as-
sumed by the United States.
Authoritative Representations: With
regard to what constitutes an "authorita-
tive" representation by the Executive, a rule
of reason must apply. Certainly, substantial
weight must be accorded the Executive's
formal presentation documents, which in-
clude the treaty itself and a detailed expla-
nation of the Executive's understanding of
the treaty's terms. Considerable weight
S 6733
must also be accorded the prepared testimo-
ny of top Executive officials. Additional in-
formation elicited during Executive-Senate
interaction regarding the meaning and legal
effect of treaty terms will also be important
because such discussion and questioning will
cover items of particular interest and con-
cern to the Senate, as a co-maker of the
treaty for the United States. The overall
significance of Executive branch representa-
tions makes in incumbent upon the Execu-
tive to take great care to avoid or remove
any inconsistency in its overall presentation
of a treaty. The possibility, however, that
the Executive may prove fallible?that an
"authoritative" representation could, on
rare Occasion, be inconsistent with the text
of the treaty, or with another "authorita-
tive" representation?is simply an unavoid-
able fact of life, which does not in any way
diminish the crucial role of such representa-
tions in providing evidence of the common
understanding of the text of a treaty held
originally by the Executive and the Senate
as co-makers of a treaty.
In this context arises the question of the
role of the INF Treaty "negotiating record,"
access to which was afforded Senators not
as a part of the Executive's formal or "au-
thoritative" presentation of the Treaty, but
in response to a Senate request. This is dis-
cussed in the following section, entitled
"The INF Treaty Negotiating Record."
Methods for Establishing New Interpreta-
tions: As originally drafted, the Biden Con-
dition stated that the United States would
not agree to or adopt a new interpretation
of the INF Treaty without the "approval of
the Senate." That phrase was intended to
encompass three possibilities, each of which
would legitimately result in the United
States adopting a different interpretation of
a treaty:
(1) an amendment to the treaty, accom-
plished by protocol or other means and rati-
fied by the Executive with the advice and
consent of the Senate;
(2) a change in the treaty's terms of im-
plementation agreed to by the parties under
procedures, and within the framework, es-
tablished by the treaty as originally ratified
with the advice and consent of the Senate;
and
(3) a subsequent statute.
In response to a concern expressed by
Senator Helms that this should be stated
more explicitly, Senator Cranston offered
new phrasing which substituted the words,
"except pursuant to Senate advice and con-
sent to a subsequent treaty or protocol, or
the enactment of a statute." Professor
Henkin subsequently indicated his judg-
ment that the principle being enunciated
had not been altered by the change in lan-
guage.
With regard to the modality of a statute
resulting in a change in U.S. treaty interpre-
tation, the Committee wishes to emphasize
that the Condition envisages this possibility
not as a matter of advocacy but as a matter
of accuracy. In the overwhelming majority
of cases, the preferable course for the
United States is for the Executive to negoti-
ate an international agreement?a new
treaty or a protocol to an existing treaty?
which is subsequently ratified with the
advice and consent of the Senate. However,
as a practical reality, it is a truth of U.S. do-
mestic law that a statute requiring the
President to adopt a new interpretation of a
treaty is binding on the Executive.20
2? One example, during the Wilson Administra-
tion, involved a congressionally-initiated statute re-
quiring a new U.S. policy that contravened existing
International arrangements pertaining to the
Panama Canal. In successfully persuading Congress
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S 6734 CONGRESSIONAL RECORD ? SENATE
The Committee notes that paragraph (c)
of the Condition is essentially a corollary of
the principles in paragraphs (a) and (b).
The import of paragraphs (a) and (b) is that
the Executive must interpret a treaty in
accord with the original Executive-Senate
"shared understanding" of the treaty,
which is reflected in the Executive's presen-
tation to the Senate, and accordingly that
the Executive may not, acting alone, adopt
an interpretation outside the bounds of that
"shared understanding." Paragraph (c)
simply spells out the circumstances under
which the Executive would receive a man-
date to adopt an interpretation outside such
bounds.
Non-Conveyance of Condition to the Other
Party: A stipulation that the Condition not
be conveyed to the Soviet Union as a part of
the instruments of ratification was included
in the Condition at the initiative of Senator
Helms. The Committee viewed this as a
matter of underscoring that the Condition
Is not directed to the U.S. obligations under
international law, which provides the con-
text within which the U.S.-Soviet exchange
of instruments of ratification will occur.
Rather, the Condition is binding under do-
mestic law, and obtains its binding effect be-
cause the President, in the absence of the
resolution of ratification, lacks authority to
participate in the treaty's ratification. He
obtains such authority through the resolu-
tion of ratification and is governed by any
stipulations by which the Senate conditions
its consent.
In sum, the President may not act upon
the Senate's consent without honoring this
Condition. Nothing that he or his Adminis-
tration does, by statement or action, wheth-
er before or after the act of ratification, can
alter the binding effect of any condition
which the Senate places upon its consent to
treaty ratification. If the President brings
the INF Treaty into force, the Condition
takes effect.
H. THE INF TREATY "NEGOTIATING RECORD"
Because the Sofaer Doctrine and the "ne-
gotiating record" were closely tied in the
ABM dispute, some Senators demanded the
"record" of the INF Treaty by means of un-
derscoring the point that the Administra-
tion's assertions about the role of the
Senate in treaty-making had destroyed any
basis on which the Senate could operate in
confidence of Executive good faith. With
ttie INF Treaty "negotiating record" having
been provided under these circumstances,
both the Administration and the Senate
now face the task of ensuring that Senate
review of "negotiating records" does not
become an institutionalized procedure.
First, a systematic expectation of Senate
perusal of every key treaty's "negotiating
record" could be expected to inhibit candor
during future negotiations and induce pos-
turing on the part of U.S. negotiators and
their counterparts during sensitive discus-
sions.
Second, by seeking possession of the
myriad internal Executive memoranda com-
prising the "negotiating record," the Senate
would impose upon itself a considerable task
with no clear purpose. Because this "record"
does not constitute an agreed account of the
negotiations, such documents have no
formal standing. Accordingly, regularized
efforts to reconcile these "snapshots" of the
negotiation process with the resulting
treaty text as explained by the Executive
would serve only to divert the Senate's at-
tention from the central aim of the ratifica-
to repeal this legislation, President Wilson argued
that the United States is simply "too big and pow-
erful and self-respecting" to put a strained inter-
pretation on its promises.
tion process?which is to build, between the
Executive and the Senate, a clear "shared
understanding" of the treaty text and the
obligations which that text entails.
The overall effect?of fully exposed nego-
tiations followed by a far more complicated
Senate review?would be to weaken the
treaty-making process and thereby to
damage American diplomacy.
The traditional approach does not, of
course, preclude reference to the "record"
where such reference can be useful in ex-
plaining the effect of treaty provisions
which may appear ambiguous or about
which questions may arise. The Executive
may sometimes wish to initiate such refer-
ence to the "record"; on some occasions the
Senate may request a detailed account of
the interchange which resulted in a particu-
lar treaty provision. But this case-by-case
approach is far superior to a systematic sub-
mission of the "negotiating record," which
implies either that treaties tend to be re-
plete with ambiguity or that the Executive
cannot be trusted to present an accurate ac-
count of the obligations to be assumed by
the United States. Neither assumption
should be allowed to govern the basic Exec-
utive-Senate interaction in the treaty-
making process.
Now that the INF Treaty "negotiating
record" has been made available to the
Senate, the status of these documents re-
quires resolution. In the Committee's view,
that resolution would not have been satis-
factorily achieved by any stipulation in the
resolution of ratification declaring that the
Senate had scrutinized the "record" and sat-
isfied itself that the "record" was in harmo-
ny with, the formal Executive branch pres-
entation of the Treaty. Such an approach
could entail three significant problems:
(a) institutionally, it could imply that
such security is important to the Senate's
examination of treaties and thus should be
institionalized;
(b) retroactively, it could imply that such
scrutiny should have been exercised in the
past; and
(c) specifically, with regard to the INF
Treaty, it eould leave open the question of
what is to be done if, in the future, there is
an assertion?for example, by a subsequent
Administration?that notwithstanding the
Senate's perception of harmony there was
an inconsistency between "record" and the
Executive presentation.
Accordingly, the Committee believes that
no formal finding concerning the contents
of the INF Treaty "negotiating record"
would be wise. In the Committee's judg-
ment, the status of this "record" is estab-
lished by the basic principles affirmed in
the Biden Condition. If U.S. treaty interpre-
tation is to be based upon the shared under-
standing of the Senate and the Executive at
the time of ratification, and if the conimon
understanding is reflected in authoritative
Executive branch statements made in seek-
ing Senate consent to ratification, then
sources of interpretation which appear at
variance must be subordinated to those au-
thoritative statements.
In sum, although internal Executive
memoranda and other negotiating materials
may have been available to members of the
Senate, some of whom have sought to
assure themselves that this "record" is con-
sistent with the Administration's formal
presentation, the clear corollary of the con-
stitutional principles cited in the Biden Con-
dition is that such documents need not have
been examined for consistency and should
not be deemed material to U.S. interpreta-
tion of the INF Treaty insofar as they are
inconsistent with the Executive branch's
formal presentation of the INF Treaty.
May 26; 1988
I. ADMINISTRATION CRITICISMS OF THE BIDEN
CONDITION
?
The Culverhouse letter (previously cited
and reprinted in the Appendix) makes three
charges against the Condition, which the
Committee has considered but to which the
Committee can attach little weight:
(1) "Changing the Rules of Treaty
Interpretation"
Under this heading, the Administration's
position makes two false charges and af-
firms a false principle.
The false charges are that the Condition
(a) ignores the ,text of a treaty as the pri-
mary source of meaning 21; and (b) a&ords
"equal dignity" to all sources of interpreta-
tion, ranging from the Secretary of State's
definitive article-by-article analysis to the
written answers to hundreds of Senators'
questions.
As to the importance of the text, there is
no issue. No one disputes that the text of a
treaty constitutes the seminal source of the
treaty's meaning. (As described previously,
at the initiative of Senator Dodd the origi-
nal draft text of the Condition was revised
before Committee approval to underscore
this point.) The Condition simply affirms
that the Executive must continue to inter-
pret a treaty in accord with the original un-
derstanding of that meaning shared by the
Executive and the Senate.
As to the weight to be given to various
parts of the Executive presentation, there is
also no real issue. The Administration's po-
sition itself envisages that "the interpreta-
tion of a treaty (will be] authoritatively
shared with ? ? S the Senate." Obviously a
rule of reason must apply. As stated above,.
the text is the central source of meaning.
But that meaning is elaborated upon
through various elements of the Executive's
presentation. The Condition does not state
that the treaty is "defined by" the Execu-
tive's presentation. Rather, it affirms that
the "common understanding" of the two
branches is reflected in?meaning evidenced*
by?authoritative representations by the
Executive.
The Administration, however, does not
wish to accept this because it wishes to
assert broad latitude for subsequent Execu-
tive "reinterpretation." It therefore affirms
what, under analysis, proves to be a truly
radical constitutional principle: that the Ex-
ecutive must adhere to a given interpreta-
tion of a treaty oniy if that interpretation
was "clearly intended, generally understood,
and relied upon by the Senate."
(2) "Unconstitutional Mechanism for
Altering Treaty Interpretation"
Under this heading the Administration al-
leges that the Condition "interferes with
the President's constitutional responsibility
to interpret and implement treaties and also
constitutes an unprecedented arrogation of
treaty power by the Senate." This charge is
without foundation.
It is indisputable that the President alone
bears the constitutional obligation to inter-
pret and implement treaties, and the princi-
ples affirmed by the Condition are perfectly
consistent with that. What the President
does not have the authority to do is inter-
pret a treaty in a way that constitutes an
amendment. His interpretive action must, if
he is to behave constitutionally, be in ac-
cordance with the original understanding of
21 As discussed earlier, the first draft of the Bide
Condition, which is the object of the Culvahous
letter's criticism, used the phrase "meaning of
treaty" on the premise that this phrase is synon
mous with "meaning of the text of a treaty." Th
the concept and central role of the "text" o
treaty were always implicit in the Biden Conditi
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May 26', 1988 CONGRESSIONAL RECORD ? SENATE
the treaty. If he wishes to change the mean-
ing of a treaty, he must obtain the agree-
ment of the other party and formalize the
change with the established mechanism of
Senate advice and consent.
Meanwhile, the President will possess in-
herent latitude in his capacity as interpreter
of every treaty to which the U.S. is a party.
In the international context, each such
treaty will inevitably provide a measure of
flexibility in interpretation and implemen-
tation=-within the treaty framework. Simi-
larly, in the domestic context, the President
will inevitably have latitude for interpreta-
tion within the bounds of the "shared un-
derstanding" established with the Senate.
(3) "Risk of Unilateral Restrictions on the
United States"
Under this heading, the White House
letter seeks to raise the specter of the
United States being bound by constitutional
processes to one interpretation of a treaty
while the Soviet Union is free to apply a less
restrictive interpretation.
This specter?originally raised by Mr.
Sofaer while trying to justify the "broad"
ABM Treaty interpretation?is highly theo-
retical. It is a truism that the Executive has
different obligations under domestic and
international law, and therefore it is possi-
ble to hypothesize situations in which those
obligations could conflict. However, in prac-
tice this has not proven to be a serious prob-
lem and there is no basis for the Adminis-
tration's assertion that the Condition
"would substantially increase this risk." The
Condition, after all, does no more than state
principles which already suffuse the Re-
statement of U.S. Foreign Relations Law.
An apparent premise of the Sofaer Doc-
trine is that practical difficulties would
ensue if the Executive were bound by what
It tells the Senate, because it would not be
an abnormal circumstance for a difference
to exist between what was agreed to with
the other party and the explanations pro-
vided to the Senate. There should be no
such difference. It is the Executive's respon-
sibility to ensure sufficient clarity in a
treaty and in its explanations thereof to the
Senate so that no conflict exists between
the shared understanding of the parties on
the one hand and the shared understanding
of the Executive and Senate on the other.
If, in extremis, such conflict should arise
and prove not resolvable by discussion or ne-
gotiation with the other party, the United
States of course has the option of withdraw-
ing from the treaty.
In sum, this largely theoretical problem
should be addressed if and when it arises?
not by a preemptive alteration of constitu-
tional principles. The Senate should not
accept a doctrine that assumes and protects
carelessness or deviousness on the part of
the Executive.
J. PROPOSED "COMPROMISES" AND OTHER
ALTERNATIVES
The Committee takes note of the asser-
tion that the Committee failed to pursue
potential "compromises" that might alleg-
edly have resulted in Committee unanimity
on the issue of treaty interpretation. The
Committee rejects this asertion as unfound-
ed.
The Committee notes first that when Sen-
ator Biden initially drafted the Condition
e circulated his text to a number of Sena-
ors of both parties in hope of engendering
partisanship on an issue?the Senate's
le in the Treaty Power?that should be of
ncern to all Senators. Moreover, as Sena-
r Cranston stated when offering the pro-
sal, "I have hoped that this simple Ian-
ge . . . could be adopted unanimously,
h the support of Senators on both sides
the aisle. I have worked closely over
many weeks with a number of Democratic
and Republican Senators on and off this
Committee. . . in an effort to work out a bi-
partisan solution."
As to potential "compromises," the Com-
mittee takes note of the following text, sub-
mitted by supporters of the Administration
as a proposed substitute for the Biden Con-
dition:
(a) that, as a matter of international law,
only the mutual obligations assumed by the
parties bind the United States;
(b) that the Senate has relied upon the
testimony and written submissions, which it
regards as authoritative, of witnesses of the
Executive Branch concerning the meaning
of the Treaty;
(c) that, as a matter of domestic law, the
United States is bound by interpretations
which the Senate clearly intended and gen-
erally understood would bind the United
States in giving its advice and consent;
(d) that, the United States being so bound,
no interpretation different from that in-
tended and understood by the Senate, as a
matter of domestic law, may be agreed to or
adopted by the United States without ap-
propriate legislative action.
The Committee points out that, while
somewhat masked, the Sofaer Doctrine is
clearly present in paragraphs (b) and (c),
which have the effect of asserting that the
three Sofaer Doctrine criteria?"generally
understood, clearly intended, and relied
upon"?must somehow be met lest the Exec-
utive have a right of "reinterpretation." In
the final analysis, the Committee could
hardly be expected to affirm the Sofaer
Doctrine in a provision the purpose of
which was to refute that Doctrine.
To be sure, various members of the Com-
mittee and of the Senate leadership dis-
played a good-faith willingness to discuss
possible compromise language. But no com-
promise was ever reached. Nor was one pos-
sible so long as discussions focused on pro-
posals designed to affirm the Sofaer Doc-
trine and thereby denigrate the Senate's
role in exercise of the Treaty Power.
Senator Cranston summarized the situa-
tion as follows: "If we settle for a solution
that undermines the Senate's role in the
treaty process, we who serve together in the
Senate now may well be charged with giving
away the Senate's treaty powers."
The basic issue remains. On the one hand
are those who view the Executive as con-
strained in treaty' interpretation by the
original shared understanding of a treaty as
reflected in authoritative explanations of
the text provided by the Executive in seek-
ing consent to ratification. On the other are
those who wish to affirm a radical new doc-
trine that has the effect of requiring the
Senate to meet certain criteria lest the Ex-
ecutive have latitude to "reinterpret" a
treaty provision as he may find convenient.
The Committee wishes to emphasize that
in asserting the binding significance of the
Executive's original representations, it has
articulated the principle with great care.
Whereas some formulations would have as-
serted that the Executive is directly and ex-
plicitly "bound by" its representations, the
Biden Condition makes no such assertion.
Rather, beginning with the premise of Exec-
utive-Senate partnership in the making of
treaties, it asserts only the binding quality
of the original "shared understanding" and
then asserts a derivative principle: that this
"shared understanding" of a treaty's text is
"reflected in"?meaning evidenced by?the
Executive's authoritative representations
"insofar as such representations are direct-
ed to the meaning and legal effect of the
text" of the treaty.
This construction helps to underscore
that a rule of reason must apply in in-
S 6735
stances where inconsistencies may appear,
lest the Executive be "bound by" two incon-
sistent requirements. Thus, the Biden Con-
dition is precisely and carefully balanced in
seeking to articulate the constitutional prin-
ciples it aims to uphold.
Finally, the Committee notes that any
"comprise" of this basic formulation would
have the effect of diluting and thereby per-
verting the provision's basic purpose. The
Committee does not wish to be a party to
any act of Executive aggrandizement which,
however expedient, would have the effect of
Impairing the treaty-making process ?or
future American diplomacy. Specifically,
the Committee wishes to uphold principles
and practices of treat-making under which
the Senate is able to accept the Executive's
presentation of a treaty in confidence and
approve the treaty in good faith solely on
the basis of that presentation, without the
obligation of creating an elaborate formal
record, or imposing formal conditions, to
display what it "generally understood, clear-
ly intended, and relied upon" as a defense
against future Executive "reinterpreters."
The only practical alternative to the
Biden Condition is to do precisely that: to
lade the INF Treaty and its resolution of
ratification with an enormous burden of
formal amendments, stipulations, condi-
tions, and the like, which could require
months of debate. For example, in response
to questions, the Administration provided
"authoritative" representations regarding a
number of issues of direct concern to the
Committee, including:
The meaning of "weapon-delivery" vehicle
In Article II;
The effect of Article XIV on U.S.-NATO
weapons cooperation;
The effect of Article VII on testing of sea-
launched cruise missiles; and
The effect of Article II on the testing of
strategic missiles at INF ranges.
Given the context created by the Sofaer
Doctrine, however, the Committee could
not?without the countervailing effect of
the Biden Condition?have been assured
that such Administration representations
were determinative of the Executive's obli-
gations in carrying out the Treaty. Accord-
ingly, in the absence of the Biden Condi-
tion, some Members would have felt obliged
to proposed specific conditions on these and
other issues.22
Senator Nunn articulated this in testimo-
ny to the Committee when he noted that in
the absence of clear confidence that the
Senate could regard Executive testimony as
having binding significance, "then of course
there are a number of us that feel that we
would have to come to the floor of the
Senate with a, number of amendments that
would make it clear that the testimony we
received on ambiguities was indeed * ?
binding on this Administration and future
Administrations."
22 By way of a detailed example, the text of the
INF Treaty does not clearly state that a "weapon-
delivery" vehicle encompasses missiles using future
technologies to damage or destroy targets. Nor does
the INF Treaty specifically define a "weapon-deliv-
ery" vehicle as a missile capable of damaging or de-
stroying a target. The Administration provided the
Committee with a specific assurance that the
United States defines the term "weapon-delivery"
vehicle as a missile capable of destroying or damag-
ing a target and that missiles employing futuristic
technologies such as lasers would be covered by the
INF Treaty. Since the INF Treaty is a permanent
treaty, the question of whether it covers missiles
using futuristic technologies is a highly relevant
concern. Thus, in the absence of the Biden Condi-
tion, the Committee might well have attached a
condition to the resolution of ratification on this
issue.
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S 6736 ,CONGRESSIONAL RECORD ? SENATE
If the Senate is required to consider
formal conditions with regard to every such
issue, the result would be indefinite delay, a
product which might have been contorted
beyond any possibility of U.S.-Soviet ratifi-
cation, and no resolution at all of the cur-
rent constitutional issue. Against this pros-
pect, it becomes clear that the Biden Condi-
tion is a cautious, responsible, and straight-
forward means of addressing a complex and
potentially grave problem.
As Senator Cranston emphasized during
the mark-up, "Adoption of this plain and
simple language will liberate us from an ex-
haustive and absurd obligation to speak in
the resolution of ratification to our under-
standing of every word of the Treaty. . . It
allows us to rely on the Administration tes-
timony without the cumbersome, time-con-
suming process of restating it."
In sum, the two categories of alternatives
to the Biden Condition are both undesir-
able. So-called "compromise" language
would be perverse to the degree that it em-
braced the Sofaer Doctrine. And to delete
the Biden Condition would be to lay the res-
olution of ratification open to a plethora of
proposed conditions on the specifics of INF
Treaty interpretation.
K. RELATIONSHIP TO ABM TREATY DISPUTE
The Committee points out that its inter-
est in avoiding a replay of the ABM Treaty
dispute was manifest in its efforts to make
this provision as INF Treaty-specific as pos-
sible, through the use of the words "this
Treaty," although as indicated earlier the
Committee recognized that any assertion of
principles would have broader meaning.
The Committee therefore reiterates, that,
even if passed by the Senate, this Condition
would not be dispositive on the issue of
ABM Treaty interpretation because the es-
sential argument used to justify the "broad"
interpretation is not an assertion of consti-
tutional principle but a factual claim of per-
vasive ambiguity. In other words, the Ad-
ministration's most basic claim is not actual-
ly that it is "reinterpreting" that Treaty but
that it is interpreting the Treaty within the
wide latitude provided by the general ambi-
guity which, it argues, surrounded the ABM
Treaty's 'Meaning at the time of ratification.
Accordingly, as Senator Dodd stressed,
"One can vote for [the Biden Condition]
and still support the "broad" interpretation
of the ABM Treaty because that debate is
mostly over facts. You ought to vote against
[the Condition] only if you believe that
under the Constitution the Executive
branch can bring a treaty here, give you an
authoritative explanation directed to the
meaning of its text, and then after the
treaty is ratified return and state that that
was not really what the text meant?it
meant something else."
In sum, the Biden Condition is not de-
signed to resolve the dispute over alleged
ambiguities in the genesis, design, and im-
plementation of the ABM Treaty, or to con-
stitute a final disposition of the issue of
Treaty interpretation. Rather, the provision
is intended to affirm certain constitutional
principles which have been brought into
question during the ABM Treaty debate.
At the same time, the Committee wishes
to note, on behalf of those who oppose the
Administration's "broad" interpretation,
that since the issue of Treaty interpretation
did not arise during Senate consideration of
the ABM Treaty, and was not foreseen at
that time, the absence of any action pertain-
ing to interpretation of the ABM Treaty at
that time cannot be construed as having any
bearing on the interpretation of that
Treaty.
1. CONCLUSION: A SUMMARY OF KEY POINTS
In conclusion, the Committee wishes to
emphasize what the treaty interpretation
issue is and what it is not:
The issue addressed by the Biden Condi-
tion is not a struggle over who interprets
treaties. It is solely and indisputably the
President's responsibility to interpret and
implement treaties for the United States. At
issue is the question of what limits are to
govern the President's latitude in exercising
that power.
The issue is not whether and what testi-
mony by the Executive is "authoritative."
To answer that question is still to be with-
out an answer as to whether "authoritative"
representations are in any way binding on
the Executive. The issue is whether and
how such representations have a binding
significance under United States law.
The issue is not whether to have a "clean"
resolution of ratification for the INF
Treaty. The issue is how, without burdening
the resolution with a plethora of formal
conditions, the Senate can ensure that the
current "shared understanding" of the
Treaty, as reflected in what the Executive
has told the Senate, becomes determinative
of the Treaty's future implementation.
The issue is not the "broad-versus-
narrow" interpretation of the ABM Treaty.
The issue is the Sofaer Doctrine, which as-
serts unreasonable, highly elastic criteria
which Must allegedly be met before the Ex-
ecutive may not "reinterpret" a given treaty
provision. To reject the Sofaer Doctrine is
not to resolve the ABM Treaty dispute, but
simply to narrow it to the confines of a
debate over facts: that is, to a debate over
alleged ambiguities surrounding that par-
ticular Treaty.
The issue is not whether the Executive is
to be bound by every last utterance of its
representatives before Congress, but wheth-
er and how the principle of original "shared
understanding" is to govern a treaty's imple-
mentation. Shall it be axiomatic that such
"shared understanding" is reflected in au-
thoritative Exective representations of the
treaty's meaning? Or must the Senate deal
with the Executive as an adversary, who will
not act in good faith and around whom a
cage of explicit stipulations must be built?
The issue is not a Senate effort to chart
new constitutional ground, but an Executive
effort to do so. It is not the Senate but the
Executive which seeks to assert constitu-
tional principles in a manner which ex-
presses an aggressively broad claim on
power. An adequate response requires no
counter-assertion of Senate power but a
simple manifestation, as reflected in the
Biden Condition, of Senate unwillingness to
acquiesce in Administration assertions
which, if not refuted, could imply accept-
ance of a radical aggrandizement of presi-
dential power. As Senator Kerry put it, "if
we do not say this, we are acquiescing in a
new statement of constitutional principles."
The Committee reiterates its intent that
the Senate not digress on this question into
a replay of the ABM Treaty dispute. That
question is not here at issue, and will not be
disposed of even by a Senate affirmation of
the principles embodied in this Condition.
The real issue, simply put, is this: that those
who oppose this Condition are, in effect,
proposing to concede to the President a
? power the Constitution does not grant him,
and which neither any previous President
nor any previous Legal Adviser has ever as-
serted.
The Foreign Relations Committee seeks
not to make the Senate the interpeter of
treaties, but to require that the Executive
interpret and implement treaties within the
boundaries of the Executive's original pres-
May 26', 1988
entation in obtaining Senate consent to rati-
fication. Senator Sarbanes , put the issue
clearly: "I dare say that if Members . . .
think about it carefully, I do not think
anyone would want an Executive to be able
to alter the interpretation of a treaty from
the representations that were made to the
Senate at the time the Executive sought the
Senate's approval." Heretofore, this princi-
ple has never been placed at issue, and the
Committee urges the Senate to uphold the
principle against the current ill-considered
and unnecessary challenge mounted by Mr.
Sofaer.
Finally, the Committee notes the Febru-
ary 1 exchange?at the outset of hearings
on the INF Treaty?between Senator Biden
and Ambassador Nitze, during which Am-
bassador Nitze stated that "an authoritative
statement by a member of the Executive
branch is determinative as to what the
meaning of the Treaty is from the stand-,
point of domestic law." 23 Had the Adminis-
tration subsequently been willing in the
Shultz letter, the Culvahouse letter, or any
other authoritative representation to affirm
this principle?and thereby repudiate the
Sofaer Doctrine?the question of treaty in-
terpretation is the Administration's unwill-
ingness to endorse the principle stated by
Ambassador Nitze and affirmed more for-
mally and precisely by the Biden Condition.
The PRESIDING OFFICER. Who
yields time? The Senator from Califor-
nia.
Mr. WILSON. Mr. President, would
my friend from Rhode Island yield for
a question?
The PRESIDING OFFICER. Does
the Senator from Rhode Island yield
for a question?
Mr. PELT, Certainly.
Mr. WILSON. I thank my friend.
Mr. President, the question that I
would ask is one that has not been de-
scribed, I think, by the chairman of
the committee in his description of the
application of the Biden-Pell amend-
ment, or even the Byrd substitute for
it. I would point out that we are, of
course, now dealing with the Byrd sub-
stitute.
But he has made the comment, as
have so many who are proponents of
this legislation, that they do not wish
to see a situation occur in which a
future President can come in and
change the interpretation that was
agreed to by the President and the
Senate at the time the advice and con-
sent of the Senate, was given.
Let me ask my friend this question,
and I think it is a very straightforward
one: What about the situation that
you have not described where there is
determined to be a clear inconsistency
between authoritative representations
and the negotiating record?
Mr. FELL. In that case,. I imagine
the administration would make the
choice that most favors its policy, and
if the Congress agreed, we would
concur in it.
This is one of these things tha
when the time comes, the decision wil
probably be made more on its politic
grounds with a legal covenant.
"This exchange Is reprinted in full in the App
dix.
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
Mr. NUNN: Will the Senator yield?
Let me give my impression on that
one.
If I understood the question of the
Senator from California, what hap-
pens when there is a difference be-
tween the authoritative representa-
tions made by the negotiators and the
legislative history. I think the answer
to that is the administration has the
burden; they are the ones who negoti-
ate the treaties. The Senate joins in
the making of treaties by giving ratifi-
cation.
They are the ones who have the ne-
gotiating record. They are the ones
who produce it. They know what it in-
cludes. They are the ones who would
hold parts of it, which they have done
on the INF Treaty. There are parts of
this treaty we do not have, and we will
never see. They are the ones who
know that.
It is their job to make sure what
they say authoritatively to the com-
mittees of this Senate is consistent
with that negotiating history. If they
make an error and they know about it
before we ratify it, they have agreed,
for instance, to let us know. If there is
any error they made in any of that
testimony or conflicts, they are sup-
posed to let us know. Secretary Shultz
knows that; Ambassador Glitman
knows that. They let us know.
If there is a conflict, then it is the
administration's problem. It is part of
their obligation to straighten it out.
Otherwise, if you take the other view,
the Senate of the United States has to
demand every scrap of paper that re-
lates to the negotiating history. We
have done that even on the INF
Treaty. Then we have to go through
and cross-e.xamine it.
What that would finally result in is
the executive branch not being able to
use treaties to conduct foreign policy.
They could not do it because we could
not ratify it.
Mr. WILSON. Mr. President, I thank
the Senator for his intervention be-
cause he makes my point, and that is
very simply having earlier commended
him and others who have participated
in what I conceive to be the most thor-
ough analysis of any treaty in the his-
tory of the United States, the most
comprehensive examination. He has
made the point that it is the obliga-
tion of the executive branch to see
that there is consistency between
those authoritative representations
and the negotiating record. It may be
their obligation.
On the other hand, Mr. President, I
am much more concerned with the
ability, as well as the prerogatives of
the Senate, to test that consistency. I
submit that without resort to the ne-
gotiating record, the Senate has no
ability, whatever its prerogatives may
be. It cannot test for consistency as,
indeed, the Senate did in this exami-
nation of the INF Treaty because for
the first time in history, the Senate, at
the time of ratification, had before it
the negotiating record with which to
compare and measure the consistency
of authoritative representation by the
administration.
Mr. NUNN. Will the Senator yield
on that point briefly?
Mr. SARBANES. Mr. President, who
controls the time?
The PRESIDING OFFICER. The
Chair will state that the Senator from
Rhode Island has the time and has
yielded 5 minutes. The Senator from
Rhode Island yielded to the Senator
from California for a question. It is
still the time of the Senator from
Rhode Island.
Mr. BYRD. No, Mr. President.
The PRESIDING OFFICER. The
Senator from Rhode Island was yield-
ed 5 minutes.
Mr. BYRD. I yielded 5 minutes to
Mr. PELL.
The PRESIDING OFFICER. Cor-
rect.
Mr. BYRD. There are times when I
will have to be off the floor. I believe I
have 84 minutes remaining.
The PRESIDING OFFICER. The
Senator is correct.
Mr. BYRD. I yield that to Mr. Num;
to control until I am on the floor. ?
The PRESIDING OFFICER. The
Senator from Georgia is in control of
the time.
Mr. NUNN. Mr. President, let me
just complete this one thought, and if
the Senator from Maryland seeks rec-
ognition, I will be glad to yield him
time.
I say to my friend from California, I
think he is correct in the statement he
has made. I believe this is the most
thorough review of the negotiating
history, the treaty, and all the ramifi-
cations.
Mr. WILSON. I thought the Senator
would agree with that much.
Mr. NUNN. I think it is the most we
probably ever have had, and maybe
the most we ever will have, although I
think we do have an obligation to do a
thorough review.
What I will not agree with is the im-
plication that we have in our posses-
sion the whole negotiating history be-
cause we have only part of it. We do
not have the negotiating instructions.
Mr. WILSON. Will the Senator yield
for a question on that point?
Mr. NUNN. Let me complete this,
and then I will yield.
We do not have internal memoran-
dums which we call deliberative mate-
rial. We did not get a number of docu-
ments that were exchanged between
the two parties.
We give them certain documents;
they give us certain documents. We re-
ceived joint documents. We thought
we received all of those. We were sup-
posed to. We did not get documents
that the United States turned over to
the Soviet Union and documents they
turned over to us.
So we do not have the total negotiat-
ing history, but we probably have a
larger part of it than we will ever get
again. We probably will not exceed
this.
S 6737
So to pretend that the United States
and our committees can take authori-
tative testimony that is given by ad-
ministration witnesses who negotiated
the treaty and then cross-examined
that against every part of negotiating
history, much of which we do not
have, is simply an illusion. It cannot
be done, and it should never be the re-
sponsibility of the Senate to under-
take that mission.
That mission should be an Executive
mission. They have all the materials.
They negotiated it. They know what
they have. They know what they have
given us. They know what they have
said, and it is up to them to determine
if there are any conflicts.
I will be glad to yield to the Senator
from California for a question, and
then I want to yield some time to the
Senator from Maryland.
Mr. WILSON. Mr. President, I thank
my friend from Georgia, the distin-
guished chairman of the committee. I
think that he has really made my
point, but my question to him is that
even conceding, as I did earlier, before
the Senator from Georgia took the
floor, that what we have by way of the
negotiating record does not contain in-
structions to negotiators, their re-
sponses to the U.S. Government and a
number of other things that admitted-
ly are not contained in it.
Given what we have, is it not true
that the distinguished chairman per-
sonally found the response of Ambas-
sador Glitman on the futures issue in-
sufficient, and found it necessary to
resort to the negotiating record that
was available to us; found further that
that negotiating record did not clear
up the concern which we had, and he
rightly pursued it, resulting in the ex-
change of letters between the two gov-
ernments which have this morning, in
the omnibus amendment that bears
his name and others, been incorporat-
ed into the RECORD for this debate and
formally incorporated into the Resolu-
tion of Ratification?
Mr. NUNN. The Senator is correct in
the sense that we found that there
was not a clear explanation from the
administration on the question of fu-
tures. We found that the treaty did
not clearly cover that. So we did not
have either the treaty itself or the au-
thoritative testimony to be able to
answer those questions.
We posed questions to the adminis-
tration. It took them 2 or 3 weeks to
get back. We still, in answer to some of
Senator QuAytz's questions and some
I posed, were not quite sure where
they stood. Under that set of circum-
stances, we did feel it would be helpful
for us to go to the negotiating history
to determine if there is anything in
the negotiating history that will shed
light on this. I think we ought to do
that in the future.
The Senator is right, we did not find,
anything in the negotiating history.
Therefore, we put in an amendment.
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S 6738 CONGRESSIONAL RECORD ? SENATE May 26, 1.988
Mr. WILSON. Will the Senator yield
on that point?
Mr. NUNN. Let me finish this
thought, and then I will yield for a
question.
Where we differ is we started by
asking the questions; we started with
the treaty; we started with the author-
itative testimony. We could not get an-
swers. Then we went to the negotiat-
ing history. That is a far different
proposition than saying that every-
thing they come up and testify to we
have to then go to the negotiating his-
tory and read all of the negotiating
history, even if it take A 700 hours, and
then see if every detail of that author-
itative testimony is incontroverted in
the negotiating history.
That burden would basically put the
Senate of the United States out of the
treaty process, as a practical matter,
because Presidents would not negoti-
ate treaties if they knew they were
going to have to take that degree of
time.
The Senate of the United States, to
take it further, and this is why I dis-
agree so fundamentally with the
Sofaer doctrine, would then have to
come to the floor of the Senate and
basically read into the RECORD all of
that material, particularly anything
that had any ambiguity to it.
We would have to take the negotiat-
ing history and spread it out. We
would have to make all of that negoti-
ating history public and it would back
up on the executive branch because
then they would have a hard time
even having confidential conversations
and communications in their negotia-
tions. So the ultimate spinout of the
Sofaer theory basically would put in
supreme jeopardy the treatymaking
power of both the executive and the
legislative branches under the Consti-
tution. I think we would be ill served
by that kind of process, and I think
our foreign policy would be damaged
very severely.
I will yield for another question.
Mr. WILSON. I thank my friend
from Georgia. I would point out that
there was another instance in. which
the Senator felt it necessary to consult
the negotiating record and that was in
a rather obvious situation where the
language was so awkwardly drawn; in-
volving a double negative, that resort
was necessary, because the authorita-
tive representation really did not
answer the question. We found that in
the negotiating record there had been
a requirement for a document about
which we had not known and would
not have known until we were into the
questioning of the authoritative wit-
ness that resolved that conflict.
Let me ask my friend this question.
Is it not true that just on the basis of
the authoritative representations with
respect to the issue of the force ma-
jeure issue, we did not realize we had a
problem until such time as we consult-
ed the negotiating record.
Mr. NUNN. I realized we had a prob-
lem in the double negative or triple
negative as soon as I read it, because I
felt the only way I could understand it
was to stand on my head.
Mr. WILSON. How about on force
majeure?
Mr. NUNN. I am sorry?
Mr. WILSON. On the force majeure
issue?
Mr. NUNN. I do not recall what
alerted us to that one. I frankly do not
know what alerted us to that/one.
I am not saying to the Senator that
the negotiating history has no validi-
ty, and I am not saying it has no role
to play. What I am saying is that the
burden must not be placed on the
Senate, to take representations by the
Secretary of State, the Ambassadors,
and people who come up and testify
and then put the burden on the
Senate to go back and cross-examine
all of that by doing a minute examina-
tion of the negotiating history. That is
what I am opposed to.
I would be the first to say that the
negotiating history has some bearing
and at times needs to be consulted by
both the Senate and the executive
branch of Government. We will have
to do that in the future, but that is a
far different proposition than the
bottom line that the Senator from
California I believe advocates, and
that is we have a duty to go behind
every single piece of authoritative tes-
timony and cross-examine it with vol-
umes and volumes and volumes of ne-
gotiating history and with material
that is not even in our possession and
we will never have turned over to us
by the executive branch.
Mr. QUAYLE. Will the Senator
yield?
Mr. NUNN. Mr. President, I am
going to have to yield on the Senator's
time. I will be glad to yield on the time
of the Senator from California.
Mr. WILSON. Mr. President, I will
take my own time to merely make a
response and then I will be happy to
yield.
The PRESIDING OFFICER. The
Senator from California then is recog-
nized.
Mr. NUNN. I simply yield the floor
at this time and the Senator can use
his time.
The PRESIDING OFFICER. Is the
Senator from California using his own
10 minutes or the time he is control-
ling for the minority?
Mr. WILSON. The time I am 'con-
trolling for the minority such as I may
require, which will be very little, to
make response to my friend from
Georgia.
The response is very simply this. He
has said that he does not remember,
and there is much to remember. I
would simply remind him that it is the
report of the Senate Armed Services
Committee that makes clear it was the
negotiating record which tipped us off
to having a problem with the force
majeure, potentially a very serious
problem. In that instance and in many
others, had we not looked at the nego-
tiating record, even one which he
views as incomplete, we would not
have been tipped off that problems ex-
isted.
Mr. President, when you are dealing
with anything as complex as arms con-
trol negotiations?and I would remind
my colleagues that what we are talk-
ing about in the INF Treaty is monu-
mentally less ambitious and complex
than that which we will undertake
when, hopefully, we can achieve a
START agreement, but when you are
dealing with anything that complex
there are bound to be omissions, there
are bound to be ambiguities, there are
bound to be inconsistencies in the tes-
timony of the administration's pre-
sumably authoritative witnesses, as in
fact there were in the 6,000 pages of
testimony by authoritative witnesses
which presumably under the Byrd
substitute to the Biden-Pell amend-
ment is now a part of the common un-
derstanding.
Let me tell you that common under-
standing is shot full of contradictions,
inconsistencies between administra-
tion witnesses. So I have to disagree
with my good friend, whom I so much
admire, the chairman of my commit-
tee, and say I think it is the duty of
the Senate, very precisely the duty of
the Senate, not to look perhaps at
every word in the negotiating record
but certainly to consult that negotiat-
ing record, as indeed we did in this in-
. stance. Had we not done so, we would
not have incorporated into the record
of the Resolution of Ratification the
very points that comprise it in the
amendment offered this morning by
the Senator from Georgia and others.
Those would not have been discovered.
They would not be now a part of the
domestic law in the making of the
United States.
It is very important, Mr. President,
that we do not simply say, yes, this
was a magnificent effort, this one time
on this INF Treaty, which is of modest
importance in comparison with what
we hope to achieve under the START
agreement that we hope may someday
take place.
To say this was a one-time, magnifi-
cent performance but no precedent for
how the Senate should conduct itself
in the future, to say that the Senate
should not undertake to monitor con-
sistency in those so-called authorita-
tive representations of the administra-
tion's witnesses with what was said
and done by United States negotiators
in Geneva is I think palpably ridicu-
lous. It is to prescribe a dereliction of
duty. Why did we do it in this in-
stance? We did it in this instance be-
cause we learned from sad experience
that in a prior test of the Senate in
the performance of its responsibilities
under the Constitution to ratify or to
fail to recommend ratification on the
ABM Treaty, not having the negotiat-
ing record led to the kind of debate
that occupied so much of our time last
year.
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
We should avoid that kind of thing
In the future. We should state that it
is a part of the duty of the Senate to
quite consciously look for the very
sorts of things that we found in the
negotiating record this time that alert-
ed us to real potential problems.
Those instances in which the text of
the treaty is ambiguous are more obvi-
ous. Those instances in which there is
inconsistency between the text and
the negotiating record or between the
authoritative representations of ad-
ministration witnesses need t,o be re-
solved. We need to go to whatever
competent evidence there is to clarify
those inconsistencies and ambiguities,
and we should begin, as we would in a
contract, by going to the record of ne-
gotiation, if there is one.
It should be understood that it is the
duty of the Senate in the course of
performing its responsibility to recom-
mend for or against ratification to
compare treaty text and not only the
authoritative representations but the
negotiating record.
Mr. SARBANES. Will the Senator
yield on that point?
Mr. WILSON. I will be happy to
yield on the Senator's time rather
than my own since we are using ours
at a rapid clip.
Mr. SARBANES. I am in control of
the time. I know Senator Nurix was
- yielding to that side on our time previ-
ously for questions.
Mr. EVANS addressed the Chair.
Mr. WILSON. Mr. President, I am
prepared to yield the floor unless the
Senator wishes me to yield for a ques-
tion on his time. I am sorry to be un-
generous, but we do not have time to
spare.
Mr. EVANS addressed the Chair.
Mr. WILSON. Mr. President, I yield
to the Senator from Washington 10
minutes.
The PRESIDING OFFICER. Was
there a time stated or was it an indefi-
nite yielding? The Chair did not hear.
Mr. WILSON. Ten minutes, Mr.
President.
The PRESIDING OFFICER. The
Senator from Washington is recog-
nized for 10 minutes.
Mr. EVANS. Thank you, Mr. Presi-
dent.
I agree wholeheartedly with the re-
marks of the Senator from California,
and I will not attempt in my 10 min-
utes to say anything more about the
negotiating record itself but to deal
much more fundamentally with what I
believe is at one and the same time a
mischevious amendment or a nullity,
one or the other, or both.
'Mr. President, I think it is time to
look pretty fundamentally at just
what we are talking about because we
are not dealing with what unquestion-
ably would be the problems of the
future after a treaty is ratified that
will come before either this Senate or
this country.
This amendment in its beginning
?alks about the Senate's advice and
onsent to the ratification of the INF
Treaty subject to the condition based
on the treaty clauses of the Constitu-
tion. Of course it is. Any treaty is. The
Constitution says that it has to be.
Then it goes on to talk about in sub
(1) the common understanding and in
section IV it talks about the provisions
of the treaty on which no common un-
derstanding was reached. Let me come
back to where I think we will run into
problems, but deal first with these ele-
ments of the amendment and why in
this Senator's view they have virtually
no real meaning.
In sub (1), "The United States shall
interpret the treaty in accordance
with the common understanding of
the treaty shared by the President and
the Senate at the time the treaty was
ratified." Well, of course, we would not
ratify unless there was that common
understanding. We have gone through
days and days of hearings in an at-
tempt to reach common understand-
ing. The very definition of common
understanding is that both sides have
the same view as to a particular provi-
sion. If that is true, there can by defi-
nition be no disagreement, and as a
result there would be no problem.
It goes on further to talk about the
basis on which this common under-
standing is reached. First, ,the text of
the treaty and the provisions of this
resolution of ratification?well, -what
an unnecessary thing to put in any
kind of a resolution. Of course you
base it on the text of the treaty and
resolution of ratification. That is what
we have had in front of us for the last
6 days. Second, the authoritative rep-
resentations which were provided to
the President and the President's rep-
resentatives. The Senator from Cali-
fornia has talked about the length and
breadth of those representations, but
of course, that is the second basis. The
only disagreement really is to what
degree the second basis, those repre-
sentations, include or should include
references to the negotiating record.
In sub (3) it says that "The United
States shall not agree to nor adopt an
interpretation different from that
common? understanding except pursu-
ant to Senate advice and consent."
Well, of course that is true. That is
what the Constitution and the current
laws of the United States require. If
there is no common understanding,
clearly, and was no common under-
standing at the time the treaty was
ratified, because that is what you say
in the beginning that is a requirement,
then you have a big problem. But that
big problem has another and far more
fundamental way of resolution than
what is attempted here.
Fourth, of course, it talks about no
common understanding and that that
provision shall be interpreted in ac-
cordance with applicable U.S. law.
That is another interesting provision.
What is the alternative to doing it in
accordance with applicable U.S. law?
-Somebody else's law or do it unlawful-
ly? The more carefully you read each
element of this amendment, the more
S 6739
redundant or mischievous it all ap-
pears.
Mr. President, let me refer in as
basic terms as I can to the fundamen-
tal reference we all have to pay atten,
tion to. That is the Constitution itself.
Nowhere in the legislative article, arti-
cle I of the Constitution, are treaties
mentioned at all except for the denial
to a State of the United States to ne-
gotiate or sign a treaty. That is it.
In the executive article, we have the
fundamental direction for the Presi-
dent. "He shall have power, by and
with the Advice and Consent of the
Senate, to make Treaties, provided
two-thirds of the Senators present
concur; ? ? *."
Mr. President, there is a vast sea of
difference between no common under-
standing and common understanding.
We are dealing with the two ends of
the spectrum in this resolution, or
amendment. But it is in all that read-
ing in between that we are going to
rim into problems in the future for
this or any other treaty. What hap-
pens when a new element comes
forth? What happens when the new
distinction has to be made, and search
as the people of that time might they
can find no common understanding? If
there is no common understanding,
then by definition, you are into a dis-
pute between the Congress?in this
case, the Senate?and the President.
How do you resolve those disputes?
We do not have to have an amend-
ment here to resolve those disputes
which are going to be the focal point
of differences in years t6 come. Our
forefathers decided long ago how to do
that in the references in the judicial
article of the Constitution, which says,
"The judicial Power shall extend to all
Cases, in Law and Equity, arising
under this Constitution, the Laws of
the United States, and Treaties made,
or which shall be made, under their
Authority; * ? ?."
Mr. President, that is the way to re-
solve disputes when they occur be-
tween this Senate and the President
on misunderstandings or differences of
understanding in the interpretation of
treaties. We have had numerous occa-
sions in our history where we have
had differences between these two
branches of Government. They have
been resolved as they should be re-
solved by the Supreme Court of the
United States. The Chadha decision is
one of the more recent where they
struck down our attempt to engage in
a one-House veto.
Mr. President, finally, it seems to me
that what we are attempting to do
here in a stilted inappropriate and un-
necessary way is to say much the same
thing that our forefathers 200 years
ago said in much more fundamental
and elegant language, and that was in
the provisions they put in the Consti-
tution which for this Senator at least
are plenty sufficient to handle the dif-
ficulties that are now in front of us.
I yield the floor.
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S 6740 CONGRESSIONAL RECORD ? SENATE ?May 26', 1988
The PRESIDING OFFICER. Who
yields time?
Mr. WILSON. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. WILSON. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. WILSON. Mr. President, I yield
to the Senator from Pennsylvania [Mr.
SPECTER] 45 minutes.
The PRESIDING OFFICER. The
Senator from Pennsylvania [Mr. SPEC-
TER] is recognized for 45 minutes.
Mr. SPECTER. Mr. President, I
thank my distinguished colleague
from California.
I will choose to use part of it at this
time and reserve the balance trying to
save as much time as possible for later
proceedings on this debate.
Mr. President, I am very much con-
cerned by the debate as it is unfolding
on this important condition, as amend-
ed by the amendment. In my view, this
is really an unconditional surrender by
the administration on matters of great
importance on international treaty in-
terpretation and U.S. constitutional
law interpretation, a matter of uncon-
stitutional surrender which is joined
in by a number of my colleagues on
this side of the aisle.
I submit, Mr. President, that this is
an unconscionable rush to judgment
as we are debating in the course of a
very limited time span perhaps the
most important constitutional issue
which has been on this floor for many,
many years, and perhaps decades. I
would suggest, Mr. President, that the
presentation of the so-called Byrd
amendment at the last minute poses
enormous problems on issues which we
do not understand because of the late
date of the arrival of this condition
and the absence of certain important
information for our consideration.
As to the issue of the unconditional
surrender, when the administration
and key Members from this side of the
aisle have agreed with the Byrd
amendment, it is enormously different
from what the administration has
staunchly contended up to as recently
as May 19, last week.
At this time, I ask unanimous con-
sent to have printed in the RECORD the
full text of an extensive speech by
legal adviser Abraham D. Sofaer, a
speech which was given last week to
the American Law Institute in Chica-
go, IL.
There being no objection, the speech
was ordered to be printed in the
RECORD, as follows:
TREATY INTERPRETATION AND THE SEPARATION
OF POWERS
(Abraham D. Sofaer*)
Luncheons are not the time for lengthy
lectures. Yet, this body thrives on serious
stuff. And I came here, delighted to accept
Rod Perkins' invitation, because I knew that
you would have some interest in my topic:
treaty interpretation and the separation of
powers. While this is not generally seen as
an exhilarating subject, Perkins has ar-
ranged the timing of the INF debate to give.
the topic special importance.
During October 1985, as you know, Presi-
dent Reagan announced that he had con-
cluded that a broad interpretation of the
ABM Treaty was "fully justified." The
President also made clear, however, that he
would not implement this interpretation
until after consulting with Congress and our
allies. Intense opposition arose to the inter-
pretation, and while the Administration's
position of the ABM Treaty's language and
negotiating record became one focus of at-
tention and debate, even more attention was
given in the Senate to whether the Presi-
dent was bound to the restrictive interpreta-
tion of the treaty because of certain Execu-
tive branch representations made in 1972
during Senate ratification hearings. The
particulars of the Senate record need not be
examined here. The point presently at issue
Is whether the condition to the INF Treaty
on treaty interpretation, currently proposed
by the Senate Foreign Relations Commit-
tee, properly states the standards by which
the legal effect of such records should be
judged.
The rules that have traditionally gov-
erned treaty interpretation were recently re-
stated in this Institute's Restatement of the
Foreign Relations Law of the United States.
A treaty between two or more states is an
international agreement, "and is governed
by international law.", International law es-
tablishes rules for the construction of trea-
ties, based on the common understanding
that exists or is exhibited between the sig-
natories. Thus, the parties look first to the
text, in context, to subsequent conduct, and
In appropriate situations to the negotiating
history.2
The Senate has broad authority to affect
the meaning of treaties. It can "exclude,
limit, or modify" an obligation of the United
States by adopting a "reservation" which, to
be effective, must be presented to and ac-
cepted by the other party.3 The Senate may
also act by formulating a "statement of un-
derstanding" of the treaty's meaning, which
it requires the President to present to the
other party, but with respect to which it
does not reqire acceptance. "When the
Senate gives it advice and consent to a
treaty on the basis of a particular under-
standing of its meaning, the President, if he
makes the treaty, must do so on the basis of
the Senate's understanding." 4 The Presi-
dent makes a treaty on the basis of a specif-
ic understanding by communicating it to the
other party prior to ratification. The other
Party is free to treat the understanding as
"a reservation which it is not prepared to
accept."' Its failure to object is therefore
powerful evidence that the understanding is
mutual.
The Senate may also adopt particular un-
derstandings of a treaty's meaning which it
does not require the President to present to
the other party prior to ratification. When
It does so the "treaty that is ratified or ac-
ceded to by the United States. . . becomes
? Legal Adviser. Department of State. This speech
Is the written text of a luncheon address given to
the American Law Institute, Chicago, Illinois, May
19, 1988.
effective in domestic law subject to that un-
derstanding." The Restatement makes no
claim that "a statement of understanding"
not communicated to the other party has
any authority under international law on
the treaty's meaning. Under domestic law,
however, even "if no such statement is
made, indication that the President or the
Senate ascribed a particular meaning to the
treaty is relevant" to its interpretation by a
United States court "in much the same way
that the legislative history of a statute is
relevant to its interpretation." 7 Such state-
ments of understanding might be found, in
addition to the Senate's resolution of -con-
sent, "in the report of the Senate Foreign
Relations Committee and in the Senate de-
bates." The relevant rule, "in that event,"
according to the Restatement, is that "the
President must decide whether they repre-
sent a general understanding by the Senate
and, if he finds that they do, must respect
them in good faith." ?
The ABM Treaty record of proceedings on
advice and consent contains evidence of
"particular understandings," which though
not adopted as formal "statements of under-
standings," were generally held by the
Senate, and on the basis of which the
Senate gave its advice and consent. The
Senate adopted no formal or informal
"statement of understanding," however, to
indicate that it had given its advice and con-
sent to the ABM Treaty "on the basis of"
the restrictive interpretation.
"Indications" do exist in the Senate
record, however, in Executive testimony and
statements of Senators, that support the re-
strictive interpretation of the ABM Treaty,
along with indications that cast doubt upon
that interpretation or support a broader in-
terpretation. My report on this subject con-
cluded that these indications were insuffi-
cient to establish a duty to respect the re-
strictive interpretation under domestic law,
but were sufficient to require the President
to decide, in accordance with the Restate-
ment, whether "they represent a general
understanding by the Senate" of the restric-
tive interpretation, and that if he found
they do he "must respect them in good
faith." 9
In this discussion I will review the posi-
tions taken by the Administration and its
opponents on the two principal issues posed
by the proposed condition: first, the effect
of informal Senate understandings under
international law; and second, the standards.
by which such understandings are properly
treated as binding under domestic law.
I. EFFECT OF INFORMAL SENATE UNDERSTAND-
INGS ON INTERNATIONAL OBLIGATIONS
The Administration believes that informal
Senate understandings based on Executive
branch statements have no binding effect
on a treaty partner. Senator Sam Nunn dis-
agreed with this view in March 1987, con-
tending that the presence of a Soviet offi-
cial at Senate ABM hearings put them on
notice of what was said; even if the Soviets
had not been present, Senator Nunn argued,
they "understand how our treaty making
process works, monitored the proceedings
and reviewed the public records." 70 Their
"clear awareness of the interpretation being
presented to the Senate," followed by their
failure to object prior to ratification, provid-
ed the U.S. with "a very strong basis in law
for insisting on the original meaning as pre-
sented to the Senate. . . ." Senator Nunn
concluded, moreover, that "it is contrary to
the long-term interests of the United States
to assert that statements made to the
Senate have no standing with other parties
to a treaty." The international community
is "on notice that the executive branch ex
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
plains treaties to the Senate during the rati-
fication proceedings. It is to our national ad-
vantage to ensure that such authoritative
explanations remain available as powerful
evidence of a treaty's Meaning in the event
of an interpetive dispute among nations." "
During March and April 1987, the Senate
Foreign Affairs and Judiciary Committees
held joint hearings under the chairmanship
of Senator Joseph Biden to consider a reso-
lution addressed to the ABM Treaty contro-
versy. During the hearings on this resolu-
tion, I testified that, in determining the
Soviet Union's international obligations, the
President cannot safely rely on the Senate's
"understanding" of the treaty, let alone an
understanding based on "acquiescence." For
the purpose of determining whether a
treaty partner is bound, I said, "When [the
Senate] gives its advice and consent to a
treaty, it is to the treaty that was made, ir-
respective of the explantaion [the Senate]
was provided." "This single sentence from
my testimony, taken out of context, became
know as the "Sofaer Doctrine," purporting
to state that Presidents may freely disre-
gard prior Executive positions. In actuality,
in that testimony, and repeatedly thereaf-
ter, I noted with respect to domestic law,
that "the President cannot, and should not,
disregard views expressed during Senate
proceedings . . . .""
During those hearings, the claim that
statements made in the Senate can be used
to bind another treaty party to the mean-
ings expressed was again advanced. Profes-
sor Tribe insisted, for example, that the So-
viets could reasonably be expected to know
what goes on in the Senate, and Must real-
ize that the treaty made is the treaty to
which the Senate consents. "It is axiomatic,
he said, "that the treaty means what the
Senate consented to." 4 He rejected what he
called "the Legal Adviser's model," which
he understood to take the positions that
"the meaning of the ABM Treaty is to be
gleaned not by examination of what the
President and the Senate agreed upon, but
by examination of what the President and
the Soviets agreed upon?regardless of what
the President may or may not have told the
Senate about what he had negotiated.""
The Joint Committee' report adopted Pro-
fessor Tribe's view. It approved a resolution
that declared that the President must inter-
pret treaties in accordance with the
common understanding of the President
and Senate, express or implied from acqui-
escence in Executive representations. While
it recognized the possibility of disparate ob-
ligations under international and domestic
law, the report joined in the claim that the
s Soviets as well as the President would be
bound:
[I]t is quite reasonable to expect?indeed,
disingenuous to pretend otherwise?that
other nations are sufficiently intersted and
capable to monitor U.S. ratification proceed-
ings. Can anyone seriously believe that the
Soviets have remained studiously oblivious
to Senate proceedings with regard to arms
control? The Committee is well aware of the
contrary; Soviet diplomats are diligent in
the extreme in monitoring deliberations of
the Senate, most particularly on matters
pertaining to U.S. Soviet relations."
The Administration's study on the ABM
ratification process was completed during
May 1987. It concluded that international
practice and governing law in fact lend no
support to the notice that statements at
proceedings before the Sente are a useful or
proper device for binding our treaty part-
ners to specific meanings of a treaty. Our
treaty partners are undoubtedly aware of
ur system of treaty making, but it is hardly
isingenuous to question whether they
llow with care all Senate proceedings, or
derive clear messages from the Senate pro-
ceedings as to the meaning of given treaty
provisions. Relatively little is clarified about
most treaties, due to the lack of time Sena-
tors are able to devote to their consider-
ation.
Others nations are in any event unlikery
to accept the premise that statements not
formally communicated to them have bind-
ing effect on them with respect to a treaty's
meaning. A particularly cogent illustration
of this occurred when U.S. and Soviet nego-
tiators discussed the specific issue of MIRV
interceptors in 1981, in a formal bilateral
exchange. The U.S. negotiator took the po-
sition that anything short of field testing of
such interceptors was allowed under the
ABM Treaty. The Soviet rejected that view,
claiming that the U.S. could not engage in
research on such an interceptor, as it could
lead to a prohibited system. The U.S. nego-
tiator then reminded the Soviets that Am-
bassador Smith had testified to the U.S. po-
sition at the Senate hearings in 1972, and
that the Soviets (who were present for
Smith's public testimony) should have ob-
jected if they disagreed. The Soviet negotia-
tor responded that the USSR had set forth
Its view on the meaning of "development"
during the ABM Treaty negotiation, and, if
it differed from the view advanced in the
Senate by Ambassador Smith, that was not
the Soviet side's fault; the Smith statement
was an internal matter." In 1979, when
asked if the Soviets could be held to an
agreement "as presented to Congress,"
Sidney Graybeal (an ABM negotiator) re-
plied: "Presentations to Congress can help
explain the language and how it was de-
rived, but they should not change the mean-
ing of the language or the scope of the pro-
visions of the agreement." 72
The United States has itself rejected sug-
gestions that it is bound internationally by
what is said in the Senate. For example,
when a German civil court used statements
made during U.S. Senate ratification discus-
sions, to determine the intent of the parties
to a treaty, Secretary of State Hughes in-
structed the U.S. Ambassador in Berlin that
"expressions of opinion as the meaning" of
the treaty involved" occurring in general
debate, cannot be regarded as affecting the
interpretation of that treaty." 72 The U.S.
would even more emphatically object to the
use by other states of their own internal
proceedings as a basis for binding the U.S.
to a given meaning. Yet, reciprocity is a
guiding principle in international affairs. If
the U.S. is going to insist that foreign states
follow and object to positions taken by Ex-
ecutive officials or Senators in our internal,
advice-and-consent process, we would be
obliged to shoulder the same obligations
abroad. We could not do so without great
additional effort, and in states such as the
Soviet Union we could not do so in any
meaningful sense. Furthermore, given the
frequent ambiguity of such legislative histo-
ry, this practice would add great uncertain-
ty to the process of treaty formulation and
interpretation, and would become a night-
mare in connection with multilateral trea-
ties.
The proper and workable rule was stated
in a report on treaty procedures, prepared
by the professional staff of the Senate For-
eign Relations Committee in 1977. The
study noted that Senate committee reports,
and statements and colloquies by the floor
manager, were intended to present the com-
mittees' understanding of the meaning of
treaty provisions, but that these sources
were "purely domestic documents and of no
concern to the other party. . . ." 22 This
rule is implicit in the accepted Senate prac-
tice of formulating statements of under-
standing in some cases which it does not re-
S 6741
quire the President to communicate to the
treaty partner. The recognized legal effect
of this practice is to condition the Senate's
advice and consent under domestic law with-
out requiring an assurance that the condi-
tion also binds the treaty partner.
The Senate did not act upon the ABM
Treaty Resolution proposed by the Joint
Committee, because Congress incorporated
into the Defense Appropriation bill a provi-
sion prohibiting spending without Specific
appropriation on ABM development or test-
ing that is inconsistent with the restrictive
interpretation." President Reagan agreed
to this provision in advance, thus accepting
Congress, role and deferring the underlying
controversy.
Submission of the INF Treaty to the
Senate led, however, to renewed debate on
the treaty-interpretation issue. The Admin-
istration received from several leading Sena-
tors demands for the treaty's entire negoti-
ating record. These Senators claimed that,
in light of the Administration's position in
the ABM Treaty debate that the treaty to
which the Senate gives its advice and con-
sent is the treaty made by the parties, the
Senate would need to check the negotiating
record to be confident that the Executive
branch had fully and accurately explained
the treaty's meaning.22 Some Senators also
threatened to condition their advice and
consent with numerous reservations and un-
derstandings, because they thought the Ad-
ministration had claimed it could disregard
Executive branch statements.28
The Administration responded construc-
tively to both these concerns. First, we
agreed that the Senate had a legitimate in-
terest in the negotiating history, and sup-
.plied the whole record-31 binders of docu-
ments." Secretary Shultz also provided a
letter to deal with the erroneous assump-
tion that the Executive branch was claiming
the freedom to disregard its own presenta-
tions." The Committee nonetheless decided
to recommend to the Senate as a condition
to its advice and consent to the INF Treaty,
a declaration of the principles governing
treaty interpretation." While acknowledg-
ing that the ABM Treaty interpretation dis-
pute should not be revisited unnecessarily,
the staff report claims that the committee
could not overlook the "constitutional asser-
tion of a clearl? delineated and unprece-
dented doctrine under which the President
has wide latitude for treaty 'reinterpreta-
tions,' notwithstanding what the Senate
may have been told in the course of grant-
ing consent to ratification." 27 Authority to
disregard prior Senate statements would
enable the President unilaterally to amend
treaties, the report claims, contrary to the
Senate's advice-and-consent authority.28
In claiming that the "Sofaer Doctrine" en-
titles the President to disregard Executive
representations to the Senate, the INF
Treaty Report reiterates the erroneous
premise adopted in the earlier Joint Com-
mittee Report. In fact, as the record demon-
strates, the testimony cited as the Sofaer
Doctrine related only to the nation's inter-
national obligations, and not to any domes-
tic, constitutional limitation implicit in the
advice and consent process. On this point,
the INF Treaty report agreed with the Ad-
ministration by acknowledging that the do-
mestic representations of the Executive
branch cannot be relied upon to bind the
other party to a treaty under international
law. The Committee ordered that its treaty
Interpretation resolution not be conveyed to
the Soviet Union as part of the instruments
of ratification, because it "viewed this as a
matter of underscoring that the Condition
Is not directed to U.S. obligations under
international law...." "
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S 6742
CONGRESSIONAL RECORD ? SENATE
IL EFFECT OF INFORMAL SENATE
UNDERSTANDINGS einem U.S. LAW
The Administration has repeatedly recog-
nized that informal Senate understandings
based on Executive representations can
result in binding commitments under do-
mestic law. In my- testimony before the
Joint Committee I said, for example, that
"the President cannot, and should not, dis-
regard views expressed during Senate pro-
ceedings.. . ." 33 I noted Secretary Shultz's
statement that, while what is said darting-
the ratification process in the U.S. Is impor-
tant to the Executive branch, "that has ab-
solutely no standing as far as the Stiviets
are concerned." I said: "That is the point
that we are making here today?lnsoiar as
the Soviets are concerned?' We do believe
that such statements have standing insofar
as the Senate is concerned and insofar as
our relationship with the Senate Is con-
cerned." 31 I noted that my memorandum
on the ABM negotiating record "is not ad-
dressed to any duties created by the entire
ratification process for the President to the
U.S. Senate. So, the President cannot and
will not and does not disregard those state-
ments...733 Despite the clarity of these state-
ments, the Administration was accused of
having' advocated the proposition that the
President is free to disregard Executive rep-
resentations.
After its hearings, the Joint Committee
adopted a resolution stating that, under the
U.S. Constitution,. the President is obliged
to interpret all treaties in accordance with
the "Senates. understanding?' 33 The resolu-
tion in effect claims that only one treaty
can exist, the one to which the Senate gives
its advice and consent, The Administration
agrees with this principle; the question is
how one goes about determining the mean-
ing of the treaty to which the Senate has
given its advice and consent. The Joint
Committee's Report asserts that sources
upon which the President roust soinetimes
rely in determining the parties' internation-
al obligations, particularly the negotiating'
history; cannot be relied upon if they have
not been given to the Senate The report re-
jects the "premise" on which it says the Ad-
ministration's ranition is baseell---that
treaty's meaning derives from communica-
tions between the parties,. Tjtis is true," the
report states, "under international law. But
it is not true wider United States law." 3" In
the view of the Committee report the Presi-
dent's broad power- of treaty interpretation
is limited by the constitutional principle
that the President can only interpret trea-
ties as they were understood by the Senate
when it voted, and a Senate understanding
need not be formally recorded, but may in-
volve mere "acquiescence" In Executive
statements or a host of other possibilities
under what the report called a. "ride of
reason.' 33
The INF Treaty report follows in most re-
spects the ABM Joint Committee report in
its approach to the domestic law limitaticms
on the President's power to interpret tree-
ties. The proposed condition, as adopted by
the Committee, notes that the "principles"
it states are necessarily derived from the
Constitution, an assertion that could be
seen as an attempt to control the outcome
of the ABM Treaty debate despite the re-
port's claim to the contrary.3" The Resolu-
tion then goes; on to state that "the United
States shall interpret this Treaty in accord-
ance with the understanding of the Treaty
shared by the Executive and the Senate at
the time of Senate consent to ratifica-
tion." 33 The "common understanding" thus
referred to is, in the Resolution, "based on
the text of the Treaty," and "reflected in
the authoritative representations [concern-
-
ing meaning or legal effect] provided by the
Executive branch to the Senate and its com-
mittees" in seeking consent to ratification."
The President would be bound to this
"common understanding" unless a change
WAS authorized by amendment, in accord-
ance with a procedure authorized by the
treaty's terms, or in a subsequent statute.
The report' continues to rely on the claim
that what it calls the Sofaer Doctrine would
allow the President to disregard prior Exec-
utive statements to the Senate."
Two Important questions arise under the
proposed condition: what is meant by
"common understanding,"vancl when is the
evidence concerning a particular meaning
sufficient to bind the President The report
explains the condition as intended to give
overriding priority in treaty interpretation
for domestic purposes to the representa-
tions of Executive -officials. It States that
any negotiating history, and presumably
any subsequent practice, that is inconsistent
with Executive representations considered
binding must be subordinated to the mean-
ing supported by the representations.'"
In reaching- this conclusion, the INF
Report had to deal with the fact that the
Executive has submitted to the Senate the
full INF negotiating record. The Joint Com-
mittee Report rejected the relevance, to the
shared understanding of the Senate and
President any negotiating history not sub-
mitted to the Senate, in itself a questionable
conclusion. But why should the Senate not
be assumed to have considered evidence ac-
tually received by it, pursuant to its re-
quest? The I111' Report claims, in effect,
with classic circularity, that because it is
necessary to make Executive statements
binding, any inconsistent materials, al-
though accurate and truly authoritative,
must be ignored. Thus, the report states:
. If U.S. treaty; interpretation Is to be based
upon the ' shared understanding of the
Senate and the Executive at the time of
ratification, and if the common understand-
ing is reflected in authoritative Executive
branch statements made in seeking Senate
consent to ratification, then sources of in-
terpretation which appear at variance must
be subordinated to those authoritative
statements."
The INF report also deals with the stand-
ards by which the "common understrding"
Is to be 'determined, and at what point the
evidence of a particular interpretation Is to
be deenied binding.
The Administration's position on this
question draws once again on the Restate-
ment, concluding that the President would
be bound for domestic purposes if the
Senate relied on a particular meaning. as a
basis for granting advice and consent, with
the Senate's intent to be ascertained in
much the same way courts determine ?
whether Congress intended to bind the Ex-
ecutive in legislation. After examining the
standards actually applied by the Supreme
Court in recent cases, combined with the
Restatement rules, we concluded that a par-
ticular interpretation would bind the Presi-
dent, despite the treaty's actual- meaning,
when it was "generally held by the Senate,
relied upon, and clearly intended." The rel-
evant ems fail to support the notion that
acquiescence in Executive statements auto-
matically creates a bincrmg meaning. For
legislative history to prevent the President
from adopting a construction that is other-
wise reasonable, the record as a whole must
reflect- a positive legislative determination
to adopt a different interpretation. In the
Japanese Whaling Association case the
Court required deference to the Executive's
construction of a statute "unless the legisla-
tive history of the enactment shows with
sufficient clarity that the agency construe-
May 26;11988
tion. is contrary to the will of Congress."'
Where no such express intent is found; sub-
sequent agency interpretation?including re-
interpretation?is generally accorded appro-
priate deference and -held to -a _general
standard, of reasonableness." And these
standards should be applied to treaty inter-
pretation with a special regard for the Presi-
dent's broad authority to interpret treaties
and conduct foreign affairs. We did not con-
clude, however, that the Senate must adopt.
a. formal "statement of understanding" to
create a binding obligation. Our study in
fact collected several examples frona.ratif
cation records of cases in which the Senate
manifested its intention through reports, in
heaings, speeches, and colloquies -which
thereafter were treated by the Executive as
creating binding. obligations..."
The INF report condemns the criteria
relied on by the Administration as having
"no constitutional basis?no reference to'
the intent of the Framers, to historical
precedent, to case law?no reference to any
source of constitutional authority." '33r Fur-
thermore, the report argues-, "while such
terms as 'generally understood,' clearly In'-
tended,' and 'relied upon' may appear-
straight forward and appealing, in practice
such criteria would be so difficult to meet
that the Executive would almost never be
bound by its own presentation to the
Senate . "t1 These "unreasonable crite-
ria," the report claims, would /Mow the
President to "reinterpret"' treaties in any'
way he chose; without constraint, confer-
ring "an effective right of treaty amend-
ment disguised as' treaty interpretation.".'
When the report turns, however, by the
task of determining the criteria which it
would advance to- judge whether the Presi-
dent is bound by a particular though Mice-
mal Senate understanding, the report'
agrees that the standards should be- the
same as those used in ascertaining- /nista-
tare intent. Withitut citing- a single such- au-
thority; however, the report asserts that
"fmolicit" intent must be treated as equally
significant to explicit intent, stating that
"implicit understandings represent Senate
agreement with and acceptance of the Ex-
ecutive's explanations, of the Treaty ...
[which] although not formalized must.
necessarily be- equal in significance to ex-
plicit understandings.. To accord them. lesser
significance would be Illogical because im-
plicit understandings commonly occur pre-
cisely where there is no ?disagreement as to
meaning and where no. issue has arisen!'"
Ciingress" failure to act to alter the meaning
In "unchallenged communications?' ex-
presses "acquiescence" in that meaning, and
therefore an. intention that it be main-
tained.
The report is correct in stating. that "a
rule of reason"?in which all the relevant
circumstances are considered?should guide
the determination of whether an Executive
representation is "authoritative." But it is
wrong to treat the Senate's "acquiescence"
In Executive statements too readily as a
basis for implying an, intention to bind the
President. In the absence of a. formal "state-
ment of' understanding.," the Re-statement
provides' that the President must decide
whether a particular understanding, was
"generally held" by the Senate, and wheth-
er the Senate gave its advice 'and consent
"on the basis" of the understanding." This
formulation may, in some instances, permit
an inference of intent to. bind, from, acquies-
cence, as where highly authoritative state-
ments are made- on an issue of fundamental
Importance to the treaty. ? The fu.dicial.
precedents indicate, however,' that binding
legislative intent is formed only when Con-
gress "has directly spoken to the. precise
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
question at issue."5, While courts have
properly given "great weight" to authorita-
tive statements on issues the record shows
to have been a basis for legislative action,"
no case could be found in which such intent
was established merely by Senate acquies-
cence in Executive testimony. This is hardly
surprising, since the silence, for example, of
a handful of Senators at a hearing, in the
face of testimony of an official, bearing on
an issue of less than central importance, is
as likely to reflect the absence of any inten-
tion as it is an implied decision of the
Senate to limit the President for all time.
On this issue, as on the status of informal
inderstandings under international law, the
differences between the Administration and
Senate advocates of the proposed condition
are narrowing. Senator Nunn, for example,
recently testified that he agreed completely
with the following excerpt from a letter by
White House Counsel A.B. Culva,house, re-
stating the Administration position:
As a matter of domestic law, however, the
President is bound by shared interpreta-
tions which were both, authoritatively com-
municated to the Senate by the Executive
and clearly intended, generally understood,
and relied upon by the Senate in its advice
and consent to ratification."
Senator Nunn said: "I don't think we are
that far apart on the Constitution itself. I
think this letter here comes a long way
along that line."" (Senator Adams, who
supports the proposed condition, agreed
with this appraisal.)"
The INF report exaggerates the dangers
of accepting these standards. The rules to
which the Administration agrees it is bound
do not allow it to disregard either the Sen-
ate's intentions or the? treaty's meaning.
Where a conflict in fact exists between the
treaty as made under international law and
understandings generally held and relied on
by the Senate in granting advice and con-
sent, the President would be required to
abide by his domestic obligation. No consti-
tutional confrontation is created by this
rare situation, since U.S. law accords priori-
ty to constitutionally based duties. Even
where the President is free as a matter of
law to construe a treaty in a manner that
differs from an Executive representation, he
Is nonetheless obliged to act within the con-
straints of international law. He cannot
"amend the treaty," but is allowed only to
construe it in accordance with the text and
negotiating history. Indeed, the freedom he
has when these requirements for a binding
domestic obligation are not satisfied is to
adopt an interpretation that actually re-
flects the treaty's obligations, rather than
being bOund by representations that fail ac-
curately to describe those obligations. He is
limited here in the same way the Executive
is limited in construing a statute; the con-
struction must be reasonable or it can prop-
erly be regarded as in excess of his author-
ity. And even though a reasonable basis
exists for a particular construction, nothing
prevents the treaty partner or Congress
from exercising all lawful pressures to pre-
vent its adoption or implementation. An in-
terpretation need not be found unlawful to
be deemed unwise.
The actual effects of the condition pro-
posed for the INF treaty would prove detri-
mental to the nation's interests if adopted.
First, the rules proposed would upset estab-
lished standards of treaty interpretation,
based on commonly accepted principles of
international law. By insisting on a meaning
for treaties derived from unilateral Execu-
tive representations the Senate would signal
to U.S. treaty partners a broad discretion to
invoke domestic law to disregard the treaty
ctually made. In some instances this may
lease the treaty partner, which may want
to see the U.S. restrained to a particular
rule. But as a general matter it will tend to
create additional uncertainty in a process
that is already complex. We would resist
such a claim by any of our treaty partners,
to avoid the uncertainties and burdens it
would entail. Furthermore, the proposed
condition would by definition only have
practical effect in situations where the
treaty partner is ,not bound by the same
"standard to which the condition would bind
this nation. This is an undesirable conse-
quence, and it should be restricted to those
situations in which the record truly reflects
a generally held intention on the Senate's
part to rely on the meaning at issue.
It is simply wrong, moreover, to claim that
one demeans the Senate's role by saying the
Senate gives its advice and consent to the
treaty made between the parties. The Sen-
ate's constitutional role is to pass on the
international agreements that are actually
to be made at ratification, not to insist on
limiting the U.S. unilaterally on the basis of
evidence of a domestic understanding that a
Senate majority later deems sufficient to be
a binding interpretation. The Senate is enti-
tled to proper respect, and to a full and ac-
curate explanation of treaties. But it is enti-
tled to receive?and obliged to give?far
more. It is entitled and obliged to determine
the true meaning of treaties, and jointly
with the President to decide whether and in
what form they should be ratified. It de-
means the Senate's role to suggest that it
will rely upon the power to insist that Exec-
utive representations be binding irrespective
of a treaty's true meaning, rather than par-
ticipating as a partner in ascertaining the
true meaning and shaping it as necessary
through proper means.
In fact, the Senate in considering the INF
Treaty has acted in accordance with its con-
stitutional responsibilities. On a series of
issues concerning which Senators found am-
biguity, including the regulation of INF mis-
siles that would be equipped with future
forms of weapons, they were unwilling to
accept Executive representations, however
explicit, authoritative, and often repeated.
They wanted to know what the parties to
the treaty had aztuafly agreed on each of
these issues, and to find that out they ex-
amined the relevant negotiating history.
When that history failed to satisfy con-
cerned Senators as to the treaty's negotiat-
ed meaning, they asked the Executive to go
back to the Soviets for clarification. We saw,
in short, a demonstration of the Senate
playing its intended role by exercising its
constitutional authority to assure itself that
it understood and found acceptable the
treaty to which it was considering giving its
advice and consent. The law should not be
distorted in order to create a standard for
implying binding domestic obligations that
is designed to accommodate a record in
which the Senate failed to perform this
role. If adopted, the condition could readily
be used as a vehicle for binding the Presi-
dent to Senate treaty interpretations based
on mere acquiescence in Executive represen-
tations, thus impinging upon the President's
? recognized authority.
III. CONCLUSION
The treaty interpretation debate contin-
ues. This review of the issues shows, howev-
er, that the differences have narrowed"con-
siderably.
Both sides in the debate agree that a
shared or common understanding in the
Senate, if based on Executive representa-
tions, cannot be used to bind treaty partners
to a meaning other than that established
under international law.
Both agree that the President cannot dis-
regard Executive statements to the Senate,
S 6743
and may in proper circumstances be bound
by such statements under domestic law.
Both largely agree on the standards for
determining if the President is bound do-
mestically: a rule of reason, reference to
cases on legislative intent, and the need to
establish a generally held understanding on
which the Senate relied.
The remaining differences should be over-
come. We intend to keep working so that
President Reagan gets to go to Moscow with
the INF Treaty ready to ratify, thus con-
cluding a strategic plan that is a bipartisan
triumph. We must also succeed, however, in
preventing misunderstanding and inter-
branch rivalry from distorting the law gov-
erning treaty interpretation and the advice-
and-consent process. I am grateful for this
opportunity to address you on this subject.
FOOTNOTES
3 Restatement (Third) of the Foreign Relations
Law of the United States (hereinafter "Restat-.
ment") ? 301.
2 Id. ? 325.
'Id. ?313. comments f and g.
? 314.
, Id. ? 313, comment g.
6 Id. ? 111 (emphasis added).
'Id. ? 314, comment4.
8 Id. Ibid., (emphasis added).
Id. Ibid.; see Office of the Legal Adviser, The
ABM Treaty Studies Part II: The Ratification
Record (hereinafter "ABM Treaty Study Part II")
27-29 (May 11, 1987).
" Id. ? The ABM Treaty and the Constitution,
Hearings before the Committee on Foreign Rela-
tions and Committee on the Judiciary, S. Hrg. 100-
110, (hereafter "Hearings") at 59 (statement of
Honorable Sam Nunn).
Id. at 59-60.
"Hearings at 130 (statement of Abraham D.
Sofaer).
I, Id. at 128. See ibid. (explaining that testimony
concerned "the evidentiary value of ratification
proceedings in the context of determining interna-
tional legal obligations"); infra, text accompanying
notes 30-32; see also letter from Abraham D.
Sofaer to the Editor, Time Magazine, March 0,
1987, explaining that, while executive statements to
the Senate cannot change the nation's internation-
al obligations under the treaty, such statements
could create domestic obligations under the Consti-
tution.
", Hearings at 415 (prepared statement of Lau-
rence H. Trite).
"Reprinted in The ABM Treaty Interpretation
Resolution, S. Rep. 100-164, 100th Cong, 1st Sess.
57 (hereinafter "Report on The ABM Treaty Inter-
pretation Resolution") (September 22, 1987) (em-
phasis in original).
" Report on the ABM Treaty Interpretation Res-
olution at 59.
ABM Treaty Study Part II at 41.
"Briefing on SALT I Compliance: Hearing
before the Senate Comm. on Foreign Relations,
96th Cong., 1st Sess. 13 (1979); quoted in ABM
Treaty Study Part II at 41, text at note 73.
'2 Secretary of State Hughes to Ambassador
Houghton, July 30, 1923, reprinted in 5 G. Hack-
worth, Digest of International Law 262 (1943);
quoted in ABM Treaty Study Part II at 38. ,
2? Staff of the Senate Comm. on Foreign Rela-
tions, 95th Cong., 1st Sess. (Comm. Print 1977) at
13.
2 Section 225 of the National Defense Authoriza-
tion Act for Fiscal Years 1988 and 1989 (Pub. L. ?
100-180, 101 Stat. 1019, Dec. 4, 1987) provides that
no funds available to the Department of Defense
may be obligated or expended for any development
or testing of ABM systems or components except
those described in the Administration's April 1987
Strategic Defense Initiative Organization Report,
which the Senate Armed Services Committee con-
sidered to be consistent with the narrow interpreta-
tion of the ABM Treaty.
33 E.g., Letter from Senator Byrd to Secretary of
State Shultz, October 15, 1987; Letter from Senator
Nunn to President Reagan, September 1, 1987. See
also Letter from Senator Pell to Secretary of State
Shultz, November 30, 1987,
"E.g., Letters from Senators Byrd and Nunn,
sUpra, note 22.
2. Letters from Secretary of State Shultz to Sena-
tors Byrd and Dole. February 5, 1988.
" Letter from George P. Shultz to Honorable
Sam Nunn, February 9, 1988, reprinted in Commit-
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S 6744 CONGRESSIONAL RECORD ? SENATE
tee on Foreign Relations, The INF Treaty, 100th
Cong., 2d Sess. ("hereinafter INF Treaty Report")
442 (April 14, 1988).
26 The proposed condition would provide
That this Treaty-shall be subject to the following
principles, which derive, an a necessary implication,
from the provisions of the- Constitution (Article
section 2, clause 2)?for the making of treaties-
(a) the United States shall interpret this Treaty
In accordance with the understanding of the Treaty
shared by the Executive and. the Senate at the time
of Senate consent to ratification;
(b) such common understanding is:
(1) based on the text of the-Treaty; and
(ii) reflected in tire authoritative representations
provided by the Executive branch to the Senate
and its Committees in seeking Senate- consent to
ratification, insofar as such representations are di-
rected to the meaning and legal effect of the text
of the Treaty;
(c) the United States shall not agree to or adopt
an interpretation different from that common un-
derstanding except pursuant to Senate advice and
consent to a subsequent treaty or protocol, or the
enactment of a statute.
This understanding shall not be incorporated in
the instruments of ratification of this Treaty or
otherwise officially conveyed to the other contract-
ing party.
INF' Treaty Report at 436.
"INF Treaty Report at 89:
26 Id. at 90-91.
2. Id. at 99-100.
30 Hearings at 128.
3' Hearings at 129.
32 Ibid.
"Resolution Concerning Constitutional Princi
pies Pertinent to the Making of Treaties,. and Fur-
ther Concerning the Interpretation of the Treaty
Between the United States. of America and the
Union of Soviet Socialist Republics on the Limita-
tion of Anti-Ballistic Missile Systems, S. Res. 167,
100th Cong., 1st Sess.
34 Report on the ABIVL Treaty Interpretation Res-
olution 55.
"Id. at 40..
3. INF' Treaty Report at 436.
3. Ibid.
38 Ibid.
3. INF Treaty Report at 90-94.
40 Id. at 1.01.
4' Ibid.
"Letter from White House Counsel A.B.. Culva-
house to Honorable Richard (5. Lugar, March 17?,
1988, reprinted in INF Treaty Report at 443-445, at
444-
" Japan Whaling Association v. American Ceta-
cean Society, 106 S.Ct. 2860, 28 . 92 L.Edd 186,
181 (1986).
4. See, e.g., Chevron, U.S.A.. v. Natural Resources-
Defense Council, 467 TO.S. 8.37,?857-58 (1984),(agenc7
had formerly adhered to one interpretaticar of the
relevant statute, but had adopted the different in-
terpretation at issue after "a new administration
took office and initiated a 'Government-wide reex-
amination of regulatory burdens and complex- -
hies' ").
45 ABM Treaty Study Part U at 50-55..
. 46 INF Treaty Report at 90-91..
Id. at 91.
"Id. at 90,
"Id. at 93.
5. Restatement ? SM.
"Bee Chevron, 4671J.S.xt TOM
52 See United States v.. Vogel Fertiliser Cur 455
U.S. 16, 31-32 (1982) (relying on executive testima.
fly explaining a bill drafted by the Treasury De-
partment when "itlhe subsequent legislative histo-
? ry of" the statute?including the report on the bill
by- the relevant House commaltee?"Confirms that
Congress adopted not only the proposal of the-
Treasury Department, but also the Department's
explaination and interpretation?".
"Hearings before the Committee on Foreign Re-
lations, S. Hrg. 100-522 Part Sat 144 (testimony of
Honorable Sam Nmrt) (March 72, I988):
5. Ibid.
"Id. at 153.
Mr. SPECTER. Mr. President, I ask,
unanimous consent, to have printed in
the RECORD the text of the letter from
legal counsel A.B. Culvahouse dated
March 17. ?
There being no objection, the letter
was ordered to be - printed in the
RECORD, as follows:
THE WHITE HOUSE,
Washington, March 17, 1988.
Hon. RICHARD D. LUGAR,
U.S. Senate,
Washington, DC
DEAR SENATOR LUGAR: This letter responds
to your letter to Howard Baker of March 9;
198& The Administration has reviewed the
attached March 2 draft of a proposed
Senate resolution of advice arid consent to
the ratification of the IN' Treaty.
For the reasons discussed below, the Ad-
ministration believes that sections 1 anti 2
of the Resolution (hereinafter these sec-
tions are referred to as the "Resolution")
are seriously flawed. The Resolution would
change the legal rules of treaty interpreta-
tion. It would impose an unconstitutional
mechanism for the alternation of a treaty
interpretation. Moreover, it would greatly
increase the risk of inflexible distinctions
between the meaning of a, treaty for pur-
poses of international law- and its meaning
for purposes of domestic law?distinctions
that could operate to the disadvantage of
the United States.
Therefore, we believe* the Resolution is
not in the best interests of the United
States.
Changing the rules of treaty interpreta-
tion: ?
We agree that the Executive is, at a
matter of domestic law, required to adhere
to the interpretation of a treaty authorita-
tively shared with, and clearly intended,
generally understood and relied upon by,
the Senate at the time of its advice and con-
sent to ratification. The Resolution, howev-
er, would purport to expand the Executive's -
obligation beyond this settled principle. Sec-
tions 1(b) and 2 of the Resolution apparent-
ly would define that shared understanding
as encompassing all statements made by of-
ficials of the Executive branch during ratifi-
cation proceedings,. These statements pre-
sumably include and attribute equal dignity
to the Secretary of State's definitive article-
by-article analysis and to the extensive tes-
timony of Cabinet Members, treaty negotia-
tors and other Executive branch officals, as
well as to the Adminstration's answers to
aver 1,001) questions siabrifitted by Members
of the Senate, no matter how trivial or how
unimportant the issue addressed may be to
the Senate's advice- and consent- delibera-
tions.
This overly broad standard is inconsistent
with the principles governing Sudicia/ inter-
pretation of treaties as a matter of domestic
law. Such a general statement would not in
our view provide the guidance required for
the President or a court to give meaning to-
the INF Treaty.
Section 1 of the Resolution focuses solely
an the role that Executive representations-
play in the interpretation of treaties, but
fails to acknowledge the most important in-
terpretative tool?the text of the treaty
itself. Ignoring the text of the treaty is in-
consistent with bedrock rules of treaty in-
terpretation, which mandate that the text is
the best evidence of the parties' intent. Al-
though "authoritative representations" are
among the tools for interpreting ambiguous
provisions in a treaty under domestic law,
the language of the treaty Is the primary
means by which a treaty is interpreted.
Unconstitutional mechanism for altering
treaty interpretation:
Section 1(c) of the Resolution would pur-
port to grant the Senate a role in interpret-
ing treaties not contemplated by the Consti-
tution. Section 1(e) states that the "United
States shall not agree to or adopt Ea differ-
entl interpretation" of a treaty "without
the approval of the Senate." This provision
of the Resolution and the Section 1(b) in-
corporation by reference of all Executive
May 20,. 1,988
statements as critical shared understandings
purport to provide the Senate with an ongo-
ing power to accept or reject subsequent EX-
ecirtive interpretations and implementations
of the INF Treaty. A "reinterpretation,"
subject to Senate approvsi, seemingly would
occur each time implementation of the
treaty calls into question any Executive
statement in the 'massive ratification record.
This section, therefore, interferes with the
President's constitutional responsibility to
interpret and implement treaties and also
constitutes an unprecedented arrogation of
treaty power by the Senate.
The Constitution does not provide that
treaties may be amended by the Senate and
the Executive acting alone after ratifica-
tion, our does it permit unicameral "inter-
pretive" legislation. The- provisions in Sec-
tions 1(c) and 2 that contemplate such a
process are not consistent with the Consti-
tution.
Risk of unilateral restrictions on the
United States:
As noted above, when interpreting a
treaty, one obviously looks first and fore-
most to the text of the treaty itself. In in-
stances where the treaty text is not disposi-
tive or Is unclear, under international lax
one looks primarily to the negotiating
record and the subsequent practice of the
treaty parties. As a matter of domestic law,
however. the President is, bound by- shared
interpretations which were both authorita-
tively communicated to the Senate by the
Executive and clearly intended,. generally
understood and relied upon by the Senate in
its advice and consent to ratification. This is
true even if the treaty negotiating record
and subsequent practice indicate an inter-
pretation contrary to that. shared under-
standing. Exchanges in Senate proceedings
in connection with the- ratification . of a
treaty cannot under international law alter
the meaning of a treaty where they are not
officially communicated to the other treaty
party prior to the exchange of instruments
of ratification. The result might be two INF
treaties,, one binding domestically against
the President and a second one binding
Internationally between the United States,
and the Soviet Union. Incur view, tire Reso-
lution would substantially increase this risk
of a dichotomy between the interpretation
of a treaty under international law and the
interpretation to which the President con-
stitutionally is bound under domestic law.,
While we have spared no effort to ensure
that Administration statements reflect the
correct interpretation of the INF Treaty,
the magnitude of the record heightens the
risk of divergence between our domestic and
international legal obligations. Any such-
difference will favor the Soviet Union be-
cause the Soviet Union is not and cannot, be
bound by our domestic processes.
The principles of treaty Interpretation
stated herein in no way contradict the posi-
tion previously taken by the Administration
with respect to the ABM Treaty. The Presi-
dent is obligated to abide by a treaty inter-
pretation clearly intended, generally under-
stood and relied upon by the Senate, based
on authoritative Executive Branch repre-
sentations during its advice and consent to
ratification. Our position in the ABM case is
not that the President may disregard such
dead/ intended interpretations, but rather
that the ABM Treaty ratification record
does not establish as a matter of law that
the Senate clearly intended that the restric-
tive interpretation be folicFweci.. Administra-
tion witnesses had presented inconsistent
and ambiguous views on the reach of these
provisions, and the Senate as a whole did
not assert a view. The President, therefor
is legally entitled to interpret the AB
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
Treaty on the basis of materials other than
the ratification record, including the negoti-
ating history. As you know, we believe that
the negotiating record shows that the
Soviet Union did not agree to be bound to
the restrictive interpretation.
This letter is presented in a spirit of coop-
eration and in the hope that the Senate and
the Executive can agree that the INF
Treaty should receive the advice and con-
sent of the Senate without any conditions.
We do not believe that it is necessary or de-
sirable to address broad, free-standing con-
stitutional principles in a resolution of
advice and consent. We believe that the pro-
posed Resolution only serves the interests
of confusion, ambiguity, confrontation and
uncertainty. This Administration, of course,
intends to consult closely with the Senate as
the INF Treaty, upon ratification, is imple-
mented and interpreted, and we will contin-
ue to embark upon such consultation in
candor and good faith.
This letter also reflects the views of the
legal offices of the Department of State,
Department of Defense, the Office of Legal
Counsel, Department of Justice, the Arms
Control and Disarmament Agency, and Na-
tional Security Council.
'
Sincerely,
ARTHUR B. CULVAHOITSE, Jr.,
Counsel to the President.
?
RESOLUTION OF RATIFICATION
Resolved, (two-thirds of the Senators
present concurring therein), That the
Senate advise and consent to ratification of
the Treaty between the United States of
America and the Union of Soviet Socialist
Republics on the Elimination of Their In-
termediatde-Range. and Shorter-Range Mis-
siles and the two Protocols thereto, togeth-
er, referred to as the INF Treaty, all signed,
at Washington, on December 8, 1987
(Treaty Doc. 100-I1), subject to the finding'
contained in Section 1 and the condition
contained in Section 2:
SECTION I. FINDING CONCERNING.CONSTITUTION-
AL PRINCIPLES.
The following principles derive, as a neces-
sary implication, from the provisions of the
Constitution, Article II, section 2,, clause 2,?
for the making of treaties:
(a) the United States shall interpret in ac-
cordance with the understanding of the
meaning of the treaty shared by the Execu-
tive and the Senate at the time of Senate
consent to ratification;
(b) such common understanding is reflect-
ed in authoritative representations as to the
meaning of the treaty provided by the Exec-
utive branch in seeking Senate consent to
ratification:
lc) the United States shall not agree to or
adopt an interpretation different from that
common understanding without the approv-
al of the Senate.
SEC. 2. CONDITION OF SENATE ADVICE AND CON-
SENT.
The Senate's advice and consent to ratifi-
cation of the INF Treaty is subject to the
condition that the ,United States shall inter-
pret the INF Treaty in accordance with the
principles cited in Section 1 of this Resolu-
tion.
Report Language: "This provision is not
designed to resolve the dispute over alleged
ambiguities in the genesis, design, and im-
plementation of the ABM Treaty, or to con-
stitute a final disposition of the ABM
\Treaty 'reinterpretation' issue. Rather, the
,provision is intended to affirm certain con-
stitutional principles which have been
I brought into question during the 'reinter-
pretation' debate."
Mr. SPKC'i'Ett. Mr. President, these
documents and the underlying legal
arguments are directly at variance
with the substance of the so-called
Byrd amendment, and a comparison of
these documents shows the uncondi-
tional surrender by the administration
on these issues of really great impor-
tance.
Last week, there was an interesting
exchange on the floor of the Senate. I
have just asked to notify the distin-
guished majority leader that I would
be making reference to some of his ar-
guments, and I repeat that at this
moment. The majority leader was
commenting about the distinguished
Senator from New Hampshire [Mr.
HUMPHREY] not disclosing an amend-
ment, and the allusion was made to a
switchblade knife that Mr. HUMPRHEY
was allegedly carrying in his pocket.
The request was made that the
amendment be made available so that
it would be known to people as to
what Was going to be argued.
Yesterday morning, at the conclu-
sion of morning business, I asked the
distinguished majority leader about an
amendment which I had heard he was
going to offer to the Biden condition.
It was not yet available, but r got a
copy of it late yesterday afternoon.
The amendment has, been forwarded
by the distinguished majority leader,
Senator Bran, and it is a different
amendinent, not enormously different.
But r would suggest, Mr. President,
that the issues involved here are so
comp/ex and so important that there
is a necessity for some time to study
the issues which are involved and to
compare the specific language with
the Biden condition.
I have referred to the allusion of the
switchblade knife because I believe
that the pending amendment is a
switchblade knife aimed at the securi-
ty of the United States, in what is
done here, because the reality is that
it imposes a burden on the United
States which is not imposed upon the
Soviet Union.
The thrust of. what has been argued
here today and what is set forth ex-
tensively in chapter 9 of the Foreign
Relations Committee report on the
Biden condition is a long-studied argu-
ment over the ABM Treaty. The
thrust of what is argued versus narrow
and broad in the ABM Treaty is to
impose an obligation on the United
States, through the so-called under-
standing of the Senate, which is not
binding on the Soviet Union.
What we really have here, on the
Biden condition, slightly modified by
the Byrd condition, is a document of
two treaties: one treaty between the
executive branch and the Soviet Union
and a second treaty between the exec-
utive branch and the Senate of the
United States.
Mr. President, it is plain on a read-
ing of the ABM documents that the
United States tabled the narrow inter-
pretation and the Soviets rejected.
The Soviets had the latitude for the
broad interpretation until they found
S 6745
it to their benefit to come back to a
narrow interpretation.
The United States has been driven,
is being driven, to the narrow interpre-
tation by references. in the ratification
record to the so-called narrow inter-
pretation. This works to the decisive
disadvantage of our country, in terms
of the strategic defense initiative,
which costs billions more when re-
stricted to the narrow interpretation,
and in terms of a much longer process
for experimentation.
As I have said on this floor before,
and as my voting, record shows, I have
not been an advocate or devotee of the
strategic defense initiative:, and until
the most recent vote, I continuously
voted for lesser funding.
I say that if the ABM Treaty binds
the United States to the narrow inter-
pretation, so be it; but if it does not, it
is inappropriate, in terms of our na-
tional security, to' aim a switchblade
knife at the heart of our security by
holding the United States to an inter-
pretation which is different from the
obligation of the Soviet. Union. That is
precisely the thrust of the narrow in-
terpretation, and that is precisely the.
thrust of this Byrd condition, and that
is the impact of what will happen here
today_
What we are dealing with, realisti-
cally, is two treaties: one to be used at
the pleasure of the Soviet Union, and
a more restrictive one in terms of what
happens on United States obligations.
Mr. President, the Byrd condition,
like the. Eiden. condition, stands the
international law of treaty interpreta-
tion on its head, because international
law in treaty interpretation has, as a
fundamental requirement, mutuality.
The United States cannot be bound,
realistically, if the Soviet Union is not
bound. But the Biden condition and
the Byrd condition impose upon the
United States a. greater obligation by
holding the United States to what
some may say is the Senate's under-
standing. There is no question that
the Soviet Union is not bound by the
Senate's understanding.
Some references have been made to
that by the distinguished Senator
from Georgia, and perhaps in this
debate we will have an opportunity to
See if he really contends that the
Soviet Union is bound by what goes on
in Senate ratification proceedings; but
the clear law is that the Soviet Union
is not so bound.
What is endeavored here today is to
make the United , States bound on
tighter restrictions than those which
apply to the Soviet Union.
Mr. President, the thrust of the
Biden condition and the Byrd condi-
tion has the same fatal flaw, but the
thrust of the Biden condition is to
render irrelevant the negotiating
record, which is a cardinal, principle of
international law treaty interpreta-
tion.
The distinguished Senator from
Georgia [Mr. Nuans] was on the floor a
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S 6746 CONGRESSIONAL RECORD SENATE
few moments ago?and I have sent
notice through staff that I would be
referring to this?saying that the ne-
gotiating record is important. Certain-
ly it is under all standards of interna-
tional law. But what does the Biden
condition and what does the Byrd con-
dition do with the negotiating record?
According to the Foreign Relations
Committee report, it makes it immate-
rial. At page 101 of that report:
"Such documents"?referring to the
negotiating record?"need not have
been examined for consistency and
should not be deemed material to U.S.
interpretation of the INF Treaty inso-
far as they are inconsistent with the
executive branch formal presentation
of the INF Treaty."
Can you imagine that under a condi-
tion adopted by this body today the
negotiating record is immaterial?
I have already introduced into the
RECORD voluminous authorities from
the Supreme Court of the United
States, the prestatement of foreign re-
lations law, consented to by most
Members of this body, that state that
the negotiating record is an indispen-
sable tool on treaty interpretation.
But under the Biden condition and the
Byrd condition the negotiating record
is deemed irrelevant and that is an un-
derlying fallacy of this condition. -
The Biden condition and the Byrd
condition as well turn upside down
U.S. constitutional law interpretation
because they develop a new theory, a
new approach on what they call im-
plicit understandings. I .have sought to
find any authority for the so-called
implicit understandings. We know of
reservations. We know of expressed
understandings. We know of a manag-
ers report. We know of dialog on the
floor where a question is asked of the
managers of a bill.
But this condition brings forward a
new concept which is revolutionary
and extremely destructive because it is
up to anyone's guess as to what will
happen with respect to such implicit
understandings.
Mr. President, one of the leading
proponents for the Foreign Relations
Committee report has been Professor
Henkin, who was the chief reporter
for the restatement of foreign rela-
tions law on international treaty con-
ditions, and I believe that Professor
Henkin's views are very important for
our consideration here today. Yester-
day I had directed a question to the
distinguished majority leader about
two letters from Professor Henkin.
have since obtained one from staff,
and I would appreciate obtaining the
other.
But Professor Henkin's letters are
very important not only because his
opinions are referred to in the text of
the Foreign Relations Committee
report and not only because he is the
chief reporter for the restatement of
foreign relations law on this important
subject, but because he puts on the
record his view that it is unwise to
have a condition attached to a treaty
like this one.
I had an opportunity to talk to Pro-
fessor Henkin yesterday, and I have
sought the documents. I have read the
second letter made available by staff.
But I state flatly that it is not possible
in the course of a few minutes to
digest and to interpret that letter. I
cannot make it a part of the RECORD.
I ask unanimous consent that a
letter from Professor Henkin dated
May 24, - 1988, be printed in the
RECORD.
There being no objection, the letter
was ordered to be printed in the
RECORD, as follows:
TEXT OF LETTER MAILED ON MAY 24, 1988
Mr. Rang B. Rum III,
Deputy Staff Director, Senate Foreign Rela-
tions Committee, Washington, DC.
DEAR MR. RITCH: It has come to my atten-
tion that I have been quoted as saying that
the Senate Foreign Relations Committee
Report on the INF Treaty misrepresented
my views. I have made no such statement
and that is not my view. I did express some
concern that, in view of the way my name
was used in the Report, a reading?surely a
quick reading?of the Report might lead the
reader to believe that I was behind the Re-
port's statement of, and attack on, the so-
called Sofaer Doctrine and that I favored
the addition of the Condition on interpreta-
tion.
Let me make my position clear. I discussed
the substance of the statement of Constitu-
tional principle with you and others; I agree
that what has emerged in that respect is
substantively sound. As I said from the be-
ginning, however, I am not in favor of
making a statement of Constitutional prin-
ciple a condition of Senate consent. If the
Senate thinks it is necessary or desirable to
declare its views of Constitutional princi-
ple?which in the present instance I agree
are sound?it should put them into a sepa-
rate Resolution.
The Committee draft in effect combines
two resolutions: it combines an understand-
ing, stated as a condition, on the interpreta-
tion of the particular INF Treaty (which
condition is binding on the President, and
on future Presidents) with a statement of
general Constitutional principle (which is
not binding on anyone). If there is insist-
ence that the reference to Constitutional
principle should be included, the text as it
appears in the Committee Report is not un-
sound. The condition is applicable to the in-
terpretation of this Treaty and as such is
binding on this and any later President; the
statement of Constitutional principle is in-
cluded only parenthetically in a kind of edi-
torial reference in passing. Perhaps it would
be better to make the parenthetical charac-
ter of the reference to the Constitutional
principle even clearer by adding a few
words, so that the introductory phrase
would read:
That the Treaty shall be subject to the
following principles, which, in the judgment
of the Senate, derive, as a necessary implica-
tion, etc.
All good wishes.
Sincerely,
LOIIIS RENIN.
Mr. SPECTER. I consider this to be
of enormous importance, Mr. Presi-
dent.
I am going to conclude the first por-
tion of my time with these comments:
I believe that I said during opening
statements that I thought the INF
May 26, 1988
Treaty was a very important treaty,
but I am, frankly, not so sure any
more, with the Biden condition or
Byrd condition. We are going to be
paying a very, very high price for this
treaty. It is a very valuable commodi-
ty, but it may not be worth the price
we are being asked here to pay today,
and that is something I am reflecting
on.
I believe there are many Senators
who are concerned about what is hap-
pening with this treaty when we are
adding on these conditions, which dev-
astate international law in treaty? in-
terpretation and decimate U.S. consti-
tutional law on treaty ratifications.
These are Matters that are going to
have to be considered and thought
hard by quite a number of Senators
between now and the time of final pas-
sage.
Mr. President, it may be that the
most we will be able to do here is to es-
tablish a record, a record which will be
viewed by other Senators and other
-Senates on another day, very much in
the nature of a dissenting opinion in
the Supreme Court of the United
States where frequently a dissent later
becomes the law of the land. A dissent
of one man against eight in Plessy
versus Ferguson on desegregation
later became the law of the United
States in Brown versus Board of Edu-
cation as what equal protection meant.
Right now this body, I submit, is on
a very dangerous course. We are being
propelled on a frantic rush to judg-
ment. We are being propelled in a con-
text where materials were not made
available like the Henkin letter, in a
context where we have had a very lim-
ited amount of time to examine this
document. We are propelled by the in-
terest of many of the Democrats in
the narrow interpretation of ABM. We
are being propelled by many Republi-
cans on an effort to reach a conclusion
on this matter today, tomorrow, or
Saturday.
So, it may be that in terms of what
we are doing here today, those of us
who are advancing legal arguments
and resisting the changes in interna-
tional law and changes in U.S. consti-
tutional law, may be putting into the
CONGRESSIONAL RECORD the statements
which will be picked up another day,
very much as Plessy versus Ferguson
may be picked up.
Mr. President, I ask unanimous con-
sent that a statement of law on the
Implications of the Biden condition
which will be equally applicable to the
Byrd condition be printed in the
?
RECORD at this point as if read in full.
There being no objection, the state-
ment was ordered to be printed in the
RECORD, as follows:
IMPLICATIONS OF THE BIDEN CONDITION
Mr. President, I tun opposed to the so- /
called Biden condition, which I more appro- /
priately refer to as the ABM reinterpreta-
tion condition, because it revises interna-,
tional law on treaty interpretation, confuses /
U.S. constitutional law on treaty ratifica-
tion, and interjects in the deliberations on
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May 26, 1988
CONGRESSIONAL RECORD ? SENATE S 6747
the INF Treaty an attempt to resolve the
continuing dispute over the ABM Treaty.
As I stated on this floor on May 18, inclu-
sion of the ABM reinterpretation condition
is the resolution of ratification by the
Senate Foreign Relations Committee has
proven to be a detrimental factor in debate
on the INF Treaty which continues to
threaten the treaty's ratification.
The ABM reinterpretation condition poses
three serious implications for treaty inter-
pretation. The condition would: First, fun-
damentally change international law on
treaty interpretation; second, change and
confuse U.S. constitutional law regarding
the Senate's role in the treaty ratification
process; and third, necessarily ilnplicate the
complex facts of the ABM Treaty and its in-
terpretation.
I. INTERNATIONAL LAW ON TREATY
INTERPRETATION
Mr. President, the ABM reinterpretation
condition fundamentally changes interna-
tional treaty interpretation.
The ABM reinterpretation condition es-
tablishes, in effect, a two-treaty doctrine,
where there is a treaty between the execu-
tive branch and the Soviet Union and simul-
taneously second treaty between the exec-
utive branch and the U.S. Senate. This con-
cept is discussed at length in chapter IX of
the Senate Foreign Relations Committee
report on the INF Treaty entitled "Treaty
Interpretation, condition adopted by the
committee," which, in effect, gives primacy
to the agreements reached between the ex-
ecutive branch and the Senate. The commit-
tee report's analysis of the ABM-reinterpre-
tation condition creates confusion and con-
tradiction in the treaty ratification process,
and represents a turf battle between the
two branches.
Althougb it includes reference to the
"common understanding- between the exec-
utive branch and the Senate "based on the
text a the treaty" and "authoritative repre-
sentations," the ABM reinterpretation con-
dition elevates the provisions of the under-
standing reached between the executive
branch and the Senate, making them para-
mount to the understanding between the
executive branch and the foreign nation.
Subsection (a) of the condition reads:
The United States shall interpret this
treaty in. accordance with the understanding
of the treaty shared by the executive and
the Senate at the time of Senate consent to
ratification.
Chapter IX of the Senate Foreign Rela-
tions Committee report includes a number
of references establishing the conunittee's
priorities in the treaty ratification process.
For example? the committee report states:
The Legal Adviser's statement implies
that the meaning of a U.S.-Soviet treaty is
to be gleaned not by' examination of what
the President and the Senate jointly under-
stood, but by examination of what the
President and the Soviets agreed upon?re-
gardless of what the President may or may
not have told the Senate..Report at 92.
This statement and other similar state-
ments throughout chapter IX of the com-
mittee report establish the committee's view
and the underlying doctrine of the ABM re-
interpretation condition that the para-
mount consideration in treaty interpreta-
tion is what was agreed upon between the
President and the U.S. Senate.
Mr. President, a treaty is valid and bind-
ing only if it establishes mutual obligations
between the two contracting parties?in the
case of -the INF Treaty, the United States
and the Soviet Union. Although the Sen-
ate's understanding plays a critical role in
what the United States agrees to in the
treaty process, it certainly is not the domi-
nant factor to be consf.dered in interpreting
a treaty. ?
In this regard, the ABM reinterpretation
condition turns the international law of
treaty interpretation on its head, because.
the dominant consideration, in interpreting
an international treaty is what was agreed
upon between the two nations?the intent
of the parties. The committee report, how-
ever, read:s:
In sum, although internal Executive,
memoranda and other negotiating materials,
may have been available to Members of the
Senate, some of whom have sought to
assure themselves that this "record" is con-
sistent with the Administration's formal
presentation, the clear corollary of the con-
stitutional principles cited in the Biden
Condition is that such documents need not
have been examined for consistency and
should not be deemed material to U.S. inter-
pretation of the. INF Treaty insofar as they
are 'inconsistent with the Executive
Branch's formal presentation of the INF
Treaty. Report at 101 (emphasis added).
The committee's conclusion that such doc-
uments are not material flatly contradicts
firmly established principles of treaty inter-
pretation. The. committee report notes that
only the Senate's understanding matters,
and does not mention the subsequent prac-
tices of the parties?thereby inferentially
deeming them irrelevant as well.
The committee's attempt to 'exclude the
negotiating record and the subsequent prac-
tices of the parties by placing sole reliance_
on what the committee defines as the Sen-
ate's understanding clearly revises treaty in-
terpretation under international law, which
recognizes that. a treaty reflects the intent
of the parties. The parties to the INF
Treaty are the United States and the Soviet
Union; the Senate is not, nor should be con-
sidered, an independent party. The commit-
tee report, however, requires a treaty to be
in accordance with what the. committee' de-
termines the Senate's understanding to be
regarding that. treaty.
By elevating the Senate's understanding
of the agreements between the executive
branch and the Senate, the ABM reinter-
pretation condition subordinates the agree-
ments reached between the President and
the other contracting country?the Soviets
In the case of the INF Treaty?to the indicia
of the Senate's. intention..
The condition's effect of elevating the
Senate's understanding of agreements
reached between the President and the
Senate may instill reluctance in other na-
tions to negotiate treaties with the United
States. Nations like the Soviet Union may
be far less willing to enter into treaties. with
the United States if we claim, that such trea-
ties will be interpreted in light of. the inten-
tions of the U.S. Senate.. The United States
certainly would object?vociferously?if an-
other country asserted a.similar condition. ,
The ABM reinterpretation condition also
has the effect of proposing a dramatic and
one-sided change in the interpretation of
international law, by urging that interna-
tional agreements should be interpreted
without regard to the intent of the parties,
whenever that intent conflicts with the
intent of the U.S. Senate.
Mr. President, to the contrary, the Su-
preme Court of the United States and estab-
lished constitutional doctrine clearly recog-
nize the following vital factors in treaty in-
terpretation: the negotiations, the terms of
the treaty, the negotiating record, and the.
practical construction adopted by the par-
ties, also referred to as the "subsequent
practice" of the parties.
The U.S. Supreme Court recently restated
this fundamental tenet of treaty interpreta-
tion. In Societe Nationale Industrielle Aero-
spatiale v. U.S. District Court for the South-
ern District of Iowa, slip op. 85-1695 (1987),
the Supreme Court stated:
In interpreting an international treaty, we
are mindful that it is "in the nature of a
contract between nations" . . . [and] The
treaty's history, "the negotiations, and the
practical construction adopted by the par-
ties" may also be relevant. Id. at 10.
The Senate Foreign, Relations Committee
report on the INF Treaty is inconsistent
with this firmly established principle. It is
possible that the understanding between
the Senate and the President may be at
variance with what the United States
agreed to with the other contracting coun-
try. In such cases, the Senate's. understand-
ing is an important, but not the determina-
tive factor?or even the factor to be consid-
ered first.
In cases of ambiguity regarding interpre-
tation of a treaty, the law- is clear that the
negotiating record and the subsequent prac-
tices of the parties are the critical factors in
resolving the ambiguity. The Senate should
reject contrary statements included' in the
committee report.
II. U.S. CONSTITIITIONALLAW
The ABM reinterpretation condition
changes and confuses U.S, constitutional
law regarding the Senates rale in-the treaty
ratification process.
Mr. President, the law is well established
that the executive interprets the meaning
of a treaty. The "Restatement of the For-
eign Relations Law of the United States,"
section 326, sets forth U.S. law on the au-
thority to interpret international agree-
ments:
(1) The President has authority to deter-
mine the interpretation of an international
agreement to be asserted by the United
States in its relations with other states.
(2) Courts in the United States have final
authority to interpret an . international
agreement for purposes of applying it as law
in the United States, but will give great
weight to an interpretation made by the ex-
ecutive branch, "Restatement of the Law
Third,- American Institute (1987) at 202.
The "Restatement's" Comment elaborates
on Presidential authority to interpret trea-
ties:
The President has authority to interpret
international agreements for the. purpose of
United States foreign relations since he is
the country's "sole organ" in its internation-
al relations and is responsible for carrying
out agreements with other nations... . . The
Senate, whose consent is necessary for the
United States to conclude a treaty, has no
special role in the implementation of the
treaty after it is made, though, of course, it
participates equally with the House of Rep-
resentatives in enacting implementing legis-
lation or appropriating funds. Interpreta-
tion by the. Senate of a treaty after it has
been concluded may have no special author-
ity, but understandings expressed by the
Senate in giving its advice and consent must
be respected. rd., comment a.
Professor Henkin, who is extensively
relied upon by the Foreign Relations Com-
mittee, has posited a similar doctrine:
The obligation and authority to imple-
ment or enforce a treaty involve also the ob-
ligation and authority to interpret what the
treaty requires. For international purposes,
no doubt, the President determines the
United States position as to the meaning of
a treaty. Domestically, too, since the Presi-
dent has usually the principal, often the
sole, responsibility to execute a treaty, the
treaty means what he says it means.
Henkin, "Foreign Affairs and the Constitu-
tion" 167 (1972).
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S 6748 CONGRESSIONAL RECORD ? SENATE
The Supreme Court also addressed subse-
quent Senate interpretation of a treaty in
Fourteen Diamond Rings v. United States,
183 U.S. 176 (1901). The Court considered
the Senate's adoption of a resolution, subse-
quent to ratification of a peace treaty be-
tween the United States and Spain, which
attempted to clarify the application of cus-
toms duties to the Philippines, and deter-
mined "that it is absolutely without legal
significance on the treaty interpretation
question before us." Id. at 180. The Su-
preme Court held:
The meaning of the treaty cannot be con-
trolled by subsequent explanations of some
of those who may have voted to ratify it. Id.
In a concurring opinion, Justice Brown
stated that the Senate resolution "cannot
be regarded as part of the treaty, since it re-
ceived neither the approval of the President
nor the consent of the other contracting
power." Id. at 182. Justice Brown also dis-
cussed at length the treaty ratification proc-
ess and the authority to interpret treaties:
A treaty. . . Uhl its essence is a contract.
It differs from an ordinary contract only in
being an agreement between independent
states instead of private parties. . . . Obvi-
ously, the treaty must contain the whole
contract between the parties, and the power
of the Senate is limited to a ratification of
such terms as have already been agreed
upon between the President, acting for the
United States, and the commissioners of the
other contracting power. The Senate has no
right to ratify the treaty and introduce new
terms into it, which shall be obligatory upon
the other power, although it may refuse its
ratification, or make such ratification condi-
tional upon the adoption of amendments to
the treaty. Id. at 182-83.
Justice Brown concluded that the resolu-
tion at issue "can be considered only as ex-
pressing the individual views of the Sena-
tors voting upon it." Id. at 184.
Mr. President, the principles of treaty in-
terpretation which apply in cases of ambi-
guity are similar to those used in determin-
ing the legislative intent of a statute. This
standard was outlined by the Supreme
Court in Japan Whaling Association v.
American Cetacean Society, slip op. No. 85-
954 (1986):
If a statute is silent or ambiguous with re-
spect to the question at issue, our long-
standing practice is to defer to the "execu-
tive department's construction of a statuto-
ry scheme it is entrusted to administer"
[quoting Chevron U.S.A. Inc. v. Natural Re-
sources Defense Council, Inc., 467 U.S. at
843] unless the legislative history of the en-
actment shows with sufficient clarity that
the agency construction is contrary to the
will of Congress. Id. at 11.
The Court continued:
It may be that the legislative history of
these amendments [at issue] there are scat-
tered statements hinting at the per se rules
advocated by respondents, but read as a
whole, we are quite unconvinced that this
history clearly indicates, contrary to what
we and the Secretary have concluded is a
permissible reading of the statute.. . Id. at
18.
In this case, the Supreme Court clearly in-
dicated that it is the executive branch
which interprets the statute, just as it is the
executive branch which interprets a treaty.
The U.S. Supreme Court articulated the
same doctrine in Chevron U.S.A. Inc. V. Nat-
ural Resources Defense Council, Inc., 467
U.S. 837 (1984). The Court stated:
When a court reviews an agency's con-
struction of the statute which it adminis-
ters, it is confronted with two questions.
First, always, is the question whether Con-
gress had directly spoken to the precise
question at issue. If the intent of Congress
is clear, that is the end of the matter; for
the court, as well as the agency, must give
effect to the unambiguously expressed
intent of Congress. If, however, the court
determines Congress has not directly ad-
dressed the precise question at issue, the-
court does not simply impose its own con-
struction on the statute, as would be neces-
sary in the absence of an administrative in-
terpretation. Rather, if the statute is silent
or ambiguous with respect to the specific
issue, the question for the court is whether
the agency's answer is based on a permissi-
ble construction of the statute. Id. at 842-43
(emphasis added).
Mr. President, the committee report Is in-
consistent with U.S. constitutional law on
the Senate's role in the treaty ratification
process.
A. THE SOFAER DOCTRINE
The Committee report rejects the so-
called Sofaer doctrine which articulates
three criteria which must be met for the ex-
ecutive to be bound by the Senate's under-
standing of a treaty:
The particular interpretation must have
been: first, "generally understood" by the
Senate; second, "clearly intended" by the
Senate; and third, "relied upon" by the
Senate. Committee report at 90.
These criteria, however, are based on prin-
ciples set forth in section 314 of the "Re-
statement of the Foreign Relations Law of
the United States and on well-established
constitutional doctrine.
During the March 22, 1988, hearing on the
INF Treaty before the Senate Foreign Rela-
tions Committee, Senator Numi himself
agreed with those three criteria when he
quoted with approval the following sentence
from a March 17 letter from the President's
Counsel, Mr. Culvahouse, to Senator LUGAR:
"As a matter of domestic law, however,
the President is bound by shared interpreta-
tions which were both authoritatively com-
municated to the Senate by the Executive
and clearly intended, generally understood,
and relied upon by the Senate in its advice
and consent to ratification."
Senator Num; stated: "That sentence
there I agree with completely." Hearings at
144. Senator NUNN again quoted this sen-
tence and the following sentence from the
Culvahouse letter, id. at 153, and stated:
"Now, I think those two sentences are some-
thing we can build on here." Id. at 154.
B. EXPLICIT/IMPLICIT CONDITIONS
Mr. President, the Senate traditionally
performs its constitutional function by ex-
pressing any particular views of a treaty in
the form of explicit conditions.
The committee report discusses at length
how the Senate reaches its understanding,
both explicit and implicit, of a treaty's
meaning. The report noted that explicit un-
derstandings "are manifest in formal condi-
tions to the Senate's consent. These condi-
tions include amendments to the text of a
treat as well as amendments to the resolu-
tion of ratification, such as 'reservations,'
'understandings,' and the like." Report at
93.
"Implicit understandings" are much more
complicated. The committee report noted
that "implicit understandings represent
Senate agreement with and acceptance of
the executive's explanations of the treaty."
Id. at -93. The committee report refers to
testimony by Professor Henkin to help
define this concept: "Where several execu-
tive statements are made and there is gener-
al acceptance of their tenor, that is the
Senate understanding." Id. at 93. The report
continued:
Clearly, in determining whether the
Senate consented to the ratification of a
treaty pursuant to an implicit understand-
May 26, 1988
ing, a rule of reason must apply. Obviously,
where the indicia of Senate intent or under-
standing (including unchallenged executive
communications or explanations) are few or
inconsistent, no implicit Senate intent can
reasonably be said to exist. On the other
hand, where the indicia of intent (again, in-
cluding unchallenged executive communica-
tions or explanations) are several and large-
ly consistent, an implicit intent can reason-
ably be concluded to exist. Id. at 93-94.
These statements are illustrative of repeti-
tious ambiguity in the committee report;
they also reflect that implicit understand-
ings realistically have no meaning where
there is "a factual claim of pervasive ambi-
guity"?see 16.-st 106.
- Mr. President, the committee report seeks
to elevate implicit understandings ? ? ? to
be equal in significance to explicit under-
standings. Id. Such a doctrine of implicit un-
derstandings is obviously tailored to but-
tress the narrow interpretation of the ABM
Treaty. It acknowledges that there is no im-
plicit understanding where the executive
communications are few or inconsistent, id.
at 94, and then refers to the ABM contro-
versy as a factual claim of pervasive ambigu-
ity. Id. at 106. As to the ABM Treaty, and
treaty interpretation generally, such a doc-
trine of implicit understandings inevitably
will raise complex?and probably insolv-
able?arguments about what is sufficient to
Imply an understanding. It is precisely for
that reason that explicit understandings are
formulated to remove such ambiguities and
disagreements.
Had there been an explicit understanding
of the scope of the ABM Treaty's applica-
tion?narrow or broad?this issue would not
now be before us. This Senator and many
others have illustrated the lack of an explic-
it understanding in the ABM Treaty
record?the text of the treaty, committee
proceedings and floor debate. The ABM
Treaty debate would not be a part of the
INF Treaty debate today had there been an
explicit understanding on narrow versus
broad application of the ABM Treaty.
III. THE ABM TREATY
Mr. President, debate on the ABM reinter-
pretation condition necessarily will impli-
cate the complex facts of the ABM Treaty
and its interpretation.
While its proponents maintain otherwise,
the condition necessarily rekindles?and, re-
alistically viewed, seeks to resolve?the sub-
stance of the ABM Treaty reinterpretation
debate. This is so because the Constitution
obviously binds the President with respect
to interpretation of all treaties and the con-
dition purports to state principles of consti-
tutional law. Its intent, quite clearly, is to
bind the President generally, including his
interpretation of the ABM Treaty. This is
obvious from reading chapter IX on the
condition, which refers repeatedly to the
ABM controversy.
Mr. President, Chapter IX of the Senate
Foreign Relations Committee report on the
INF Treaty clearly is an attempt to discredit
the so-called Sofaer doctrine and influence
the argument on the narrow versus broad
interpretation of the ABM Treaty. Apart
from these two purposes, the committee ac-
knowledges that this condition is unneces-
sary. The report reads: , ? . -
The committee notes that, in one respect,
its action in including this condition in the
INF Treaty's resolution of ratification was
unnecessary insofar as principles which in-
herently apply to the INF Treaty. would
apply even in the absence of any Senate
action affirming them. Given the circum7
stances, however, the committee judged
that to fail to affirm such principles could
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
suggest some degree of acquiescence in the
Sofaer doctrine, which the committee views
as an executive attempt to assert an uncon-
stitutional arrogation of the treaty power.
In this sense the committee views the Biden
condition, paradoxically, as both unneces-
sary and highly significant. Report at 97,
emphasis added.
The committee report repeatedly raises
the interpretation issue, only to discuss at
length what the interpretation is not. The
extended discussion in chapter IX of the so-
called Sofaer cicictrine clearly reflects the
committee's attempt to interject the ABM
Treaty debate into the INF Treaty ratifica-
tion debate.
The ABM reinterpretation condition
clearly implicates the ABM controversy
when the ultimate question was asked of
Senator CRANSTON on May 18:
Mr. SPECTER. When the distinguished Sen-
ator from California says that there is no
objection to the current interpretation of
the INF Treaty, only as to issues of reinter-
pretation, the sole issue in the Senate today
is the interpretation of the INF Treaty, why
bring up the question of reinterpretation of
treaties? CONGRESSIONAL RECORD, May 18,
1988, at 86064.
Had Senator CRANSTON replied that there
is no reason to bring up the question of rein-
terpretation of treaties, the debate on this
condition would be over. However, Senator
CRANSTON'S answer brought up ABM and
the Sofaer doctrine and that is where the
extensive debate necessarily leads if the
condition is pursued.
Mr. President, the debate over interpreta-
tion of the ABM Treaty highlights the im-
portance Of treaty interpretation principles.
The ratification, record, of the ABM Treaty
contains only a few statements on the issue
of narrow versus broad, and these state-
ments are themselves inconsistent. This
Senator suggests that if a full debate of the
ABM Treaty is pursued in the context of
the INF Treaty ratification process, the
record will reveal the degree of ambiguity
on the narrow versus broad issue, which
thus requires deference to the executive
branch's interpretation given established
principles of international law and U.S. con-
stitutional law.
The only issue before the Senate today,
however, is the interpretation of the INF
Treaty, as to which there is no real dispute.
IV. CONCLUSION
Mr. President, inclusion of the ABM rein-
terpretation condition in the INF Treaty's
resolution of ratification threatens to em-
broil the Senate in a protracted debate over
the constitutional treaty power and contin-
ues to threaten ultimate ratification of this
historic agreement. The concern I expressed
on this floor on May 18?that the condition
would be a detrimental factor in the ratifi-
cation of the INF Treaty?unfortunately
and regrettably still may prove accurate.
Ratification of the INF Treaty prior to
the President's departure for the Moscow
summit is too important to the Nation to be
ensnared in a turf battle between a few indi-
viduals in the Senate and a few in the exec-
utive branch. The Senate should reject the
ABM reinterpretation condition in the INF
Treaty's resolution of ratification, and
should continue to follow established princi-
ples of international law and U.S. constitu-
tional law regarding treaty interpretation.
Mr. SPECTER. I thank the Chair,
and I yield the floor. How many of my
45 minutes have I remaining?
The PRESIDING OFFICER. The
Senator has 27 minutes remaining.
Mr. SPECTER. I thank the Chair.
The PRESIDING OFFICER. The
Senator from California.
Mr. CRANSTON. I would like to
have yielded not more than 10 min-
utes.
The PRESIDING OFFICER. The
majority leader.
Mr. BYRD. Mr. President, I yield
not to exceed 10 minutes to Mr. CRAN-
STON.
Mr. CRANSTON. I thank the major-
ity leader.
The PRESIDING OFFICER. The
Senator is recognized for 10 minutes.
Mr. CRANSTON. Mr. President, I
want to begin by making clear that
the issue before us is one which we
must confront by necessity, not by
choice.
It is an institutional issue, which
goes to the heart of the meaning of
the long treaty ratification exercise in
which we, as Members of the U.S.
Senate, are engaged.
It is not?or at least it need not and
should not be?a partisan issue.
The question, simply put, is:
How can we ensure that the Senate and
the President share a common understand-
ing of our obligations under the INF
Treaty?
It is not an academic question. And
it is not one devised as a means of in-
troducing an element of complexity
into our INF deliberations. Rather, it
is a question thrust upon all Senators
by the awkward efforts certain State
Department lawyers have made to re-
interpret U.S. obligations under a pre-
vious nuclear arms agreement, the
1972 ABM Treaty.
We are not trying to resolve that
ABM dispute today. Indeed, as we in
the Senate Foreign Relations Commit-
tee made crystal clear, the language
on interpretation of the INF Treaty
which was adopted by the committee
is not dispositive of the "ABM reinter-
pretation issue"?nor, I should note,
should the failure of Senators to ad-
dress treaty interpretation principles
during the 1972 ratification be deemed
to prejudice subsequent debate and de-
cisionmaking.
The ABM/SDI traditional interpre-
tation versus broad interpretation
debate has become charged with emo-
tion?despite the fact that the funding
issue has been, for all intents and pur-
poses, resolved on Department of De-
fense authorization measures. We
must set the ABM issue aside if we are
to resolve the task before us?which is
to vote on consenting to ratify the INF
Treaty.
Having said what our amendment to
the resolution of ratification does not
do, let me briefly clarify what it does
seek to accomplish.
Our amendment is-an-understanding
which governs Senate consent to rati-
fication. It is a "category one condi-
tion" which the President is obliged to
accept as governing on his authority
to exchange INF instruments of ratifi-
cation with the Soviets.
It is treaty-specific. It applies only to
this INF debate.
S 6749
It stipulates that the U.S. Govern-
ment shall interpret the treaty on the
basis of the shared understanding of
the Senate and the Executive at the
time of ratification.
It defines this shared understanding
in language that is essential and that
is quite clear.
Our shared understanding is not lim-
ited to areas where the Senate has
amended the resolution of ratification,
or where it has extensively debated a
specific provision on the Senate floor.
Our shared understanding is based
primarily on a commonsense reading
of the text and upon authoritative
representations about this text provid-
ed to the Senate and its committees by
administration officials during the
ratification debate.
Adoption of this plain and simple
language will liberate us from an ex-
haustive?and absurd?obligation to
speak in the resolution of ratification
to our understanding of every word of
the treaty. It allows us to rely on the
administration testimony without the
cumbersome, time-consuming process
Of restating it.
I had honestly hoped that this
simple language?which does not dis-
pose of the past ABM dispute?could
be adopted with the strong bipartisan
support of Senators on both sides of
the aisle.
I have worked closely with my
friends DICK LUGAR, ALAN SIMPSON,
HOWARD BAKER, and others, seeking,
through hours of good-faith discus-
sions, to devise a remedy which can-
invite consensus support, which avoids
partisan divisions.
Regrettably, this has not proven
possible. Although the latest version
offered by the majority leader has
seemingly served to end the opposition
of some Senators on the minority side,
a determined group of colleagues on
the other side of the aisle have re-
fused to agree on anS7 language which
effectively protects the role of the
Senate in making a treaty.
Frankly, Mr. President, I simply
cannot understand why some Republi-
can Members object so strenuously to
the committee resolution?the so-
called Biden amendment.
Some of them have even actually
threatened to vote against the treaty
because of the resolution?a treaty the
Republican administration negotiated,
which President Reagan signed and
which they themselves support.
Why?
Mr. SPECTER. Will the Senator
yield?
Mr. CRANSTON. Certainly.
Mr. SPECTER. The Senator asked a
question and I will give him an answer
to the question. When you have a con-
clusion that the-negotiating record is
immaterial or conflicts with the un-
derstandiug of the Senate, is that not
consistent with decades, if not centur-
ies, of international law on treaty in-
terpretation?
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S 6750 CONGRESSIONAL RECORD ? SENATE May 26, 1988
Mr. CRANSTON. Well, the negotiat-
ing record is not immaterial, but what
is material to this is what we were told
the treaty meant when the adminis-
tration presented it to us.
What does the Biden amendment?
stripped of its parliamentary lan-
guage?
Mr. SPECTER. Will the Senator
yield?
Mr. CRANSTON. No, I do not want
to yield any further. We have limited
time.
What does the Biden amendment?
stripped of its parliamentary lan-
guage?say that so arouses some Re-
publican Senators?
It simply says that the treaty means
what President Reagan, Secretary of
State Shultz and other key adminis-
tration officials said it means.
It says the treaty hides no secret
meaning that the American people
have not been told about.
And it says there is no valid basis for
someone in the future to claim that it
means something else, unless the
Senate agrees to accept that new
meaning.
What is so horrendous about such
an amendment?
Why should it excite Republicans to
such a fever pitch that they threaten
to scuttle the treaty?
The Constitution specifically man-
dates that two units of the U.S. Gov-
ernment must participate in a treaty
for that treaty to be legally binding;
the Executive and the Senate.
But only the Executive negotiates
treaties. ?
And only the Executive is privy to
all the discussions that took? place
during the negotiations.
So the Senate must rely on the Ex-
ecutive as the only authoritative
source for information on the treaty.
Why should Republicans object to
including a simple statement that in
effect says the Senate has been told
the truth?the whole truth and noth-
ing but the truth?about this treaty?
As I said at the beginning, Mr. Presi-
dent, I just cannot understand it.
I thank the many Senators, and ad-
ministration officials, who have made
constructive efforts to resolve this
issue.
But now the time has come to vote,
and shortly we will.
Before us is a proposal which I be-
lieve is fair, is balanced, and which
meets all reasonable and legitimate
concerns expressed by parties to this
dispute.
I urge all Senators to support this
language, and to thereby uphold the
integrity of this Senate, and the mean-
ing of the INF Treaty ratification
process.
? Mr. SPECTER. Will the Senator
from California respond to a question
on my time?
Mr. CRANSTON. Certainly.
I yield back the remainder of my
time.
The PRESIDING OFFICER. The
Senator from California,has terminat-
ed his time. The Senator from Penn-
sylvania is recognized on his own time.
The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, when
the Supreme Court of the , United
States said, in the 1942 session in the
Choctaw Nation of Indians case that
the negotiations were important for
treaty interpretation and the U.S. Su-
preme Court restated that proposition
on June 15, 1987, in the Societe case
that the negotiations and the practical
construction adopted by the parties
may also be relevant, how can the Sen-
ator from California support a condi-
tion which says the negotiating record
is immaterial?
Mr. SARBANES. Will the Senator
yield?
Mr. SPECTER. No, I want an
answer from the Senator from Califor-
nia, on my time.
Mr. CRANSTON. What was your
question?
Mr. SPECTER. When the Supreme
Court of the United States has repeat-
edly said?and I might throw in the re-
statement of the law on international
relations?that the negotiating record?
is the most critical aspect of determin-
ing the meaning of the treaty, how
can the Senator from California sup-
port a condition which says the negoti-
ating record is immaterial?
Mr. CRANSTON. That is not basi-
cally what we have said. What we are
trying to do is uphold the traditional
approach.
Let me read to you from the commit-
tee report:
The traditional approach does not, of
course, preclude reference to the "record"
where such reference can be useful in ex-
plaining the effect of treaty provisions
which may appear ambiguous or about
which questions may arise. The Executive
may sometimes wish to initiate such refer-
ence to the "record"; on some occasions the
Senate may request a detailed account of
the interchange which resulted in a particu-
lar treaty provision. But this case-by-case
approach is far superior to a systematic sub-
mission of the "negotiating record," which
Implies either that treaties tend to be re-
plete with ambiguity or that the Executive
cannot be trusted to present an accurate ac-
count of the obligations to be assumed by
the United States. Neither assumption
should be allowed to govern the basic Exec-
utive-Senate interaction in the treaty-
making process.
Mr. SPECTER. Mr. President, that
is very interesting, but it has nothing
to do with my question. My question
related to ruling out the negotiating
record when it was inconsistent with
the understanding of the Senate.
Certainly, as the Senator from Cali-
fornia reads, even under the report,
the negotiating record comes into play
in many circumstances, but that is not
the issue. - - -
The issue is that the Eiden condition
and the Byrd condition say that if the
negotiating record is inconsistent with
the Senate's understanding, whatever
that may be, under an implicit under-
standing, the negotiating record is, im-
material. That is what the committee
report says at page 101.
When the Senator from California
asked why Republican Senators object
to this condition, that is why.
How much time do I have remaining,
Mr. President?
Mr. CRANSTON addressed the
Chair.
The PRESIDING OFFICER,. Just a
moment. Senators will suspend.
The Senator has 16 minutes remain-
ing.
Mr. SPECTER. Sixteen minutes?
Was 10 minutes consumed on the
question and answer? -
The PRESIDING OFFICER. Just a
moment.
The Senator has 23 minutes remain-
ing.
Mr. SPECTER. That is much better.
I thank the Chair.
Mr. WILSON. Mr. President, will the
Senator from California yield for a
question on my time?
Mr. BYRD. Mr. President, I yield 5
minutes to Mr. Sarbanes.
The PRESIDING OFFICER. The
Senator from Maryland is recognized
for 5 minutes.
Mr. SARBANES. Mr. President, I
thank the leader for yielding.
Before I make a brief statement, I
want to comment with respect to the
colloquy that was just taking place.
Let me simply make the observation
that, in most instances, in considering
a treaty, what the Senate receives
from the administration is the text of
the treaty, and then the authoritative
representations of the President and
his representatives, who come to the
Senate and say, "This is what the
treaty means."
We then give our advice and consent.
In most instances, we do not go to the
negotiating record, and there is no
reason to go to the negotiating record.
The Byrd amendment makes it very
clear that those authoritative repre-
sentations by the President and his
representatives to the Senate and its
committees, insofar as such represent-
atives were directed to the meaning
and the legal effect of the text of the
treaty, are a basis of the common un-
derstanding of the treaty shared by
the President and the Senate, and
that later an administration cannot
come along and adopt an interpreta-
tion of the treaty different from the
common understanding based upon
the authoritative representations
made to the Senate at the time it was
engaged in the advice and consent
process.
Now, if, at the time of examining the
treaty, the Senate finds ambiguities,
or feels that the treaty is not dear,
and probes as to what it means, _it may
well go into the negotiating record in
order to help ascertain the meaning of
a provision.
In the instance the negotiating
record is relevant, and Senate refer-
ence to it is of course not precluded.
That, in fact, happened in the case of
this treaty.
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
But in most treaties the Senate does
not refer to the negotiating record.
The negotiating record is not before
the Senate. It is in the hands of the
administration, so the Senate looks to
the text of the treaty and the authori-
tative representations made by the
President and his representatives as to
the meaning of the treaty.
Once we give our advice and consent
to the treaty on the basis of the
common understanding, a subsequent
administration cannot come along and
reinterpret that treaty contrary to
what was presented to the Senate at
the time its advice and consent was ob-
tained.
I want to commend the Majority
Leader, the very distinguished Senator
from West Virginia; Senator NuNN,
Chairman of the Armed Service Com-
mittee; and our colleague from Dela-
ware, Senator BIDEN, who unfortu-
nately, cannot be with us today to par-
ticipate in this debate but who, I
know, very much would have wanted
to be here; for their efforts in fashion-
ing the provision that is now before
us, and in ensuring thereby that the
Senate's time-tested, time-honored,
constitutional role with respect to
treatymaking will be upheld in the
course of considering the treaty that is
now before us.
Mr. President, I want to take a
moment or two to quote from ,some
newspaper editorials and to have them
printed in the RECORD.
There are some who have asserted
that this is not an issue of importance.
I absolutely agree with the majority
leader when he said in his opening
statement that this is a matter of
great consequence, and that what is at
issue is the rightful and constitutional
role of the Senate in the approval of
treaties.
The Baltimore Sun stated, in an edi-
torial of the 16th of May:
An no point, however, should the Senate
withdraw from its insistence that treaty tes-
timony offered by an incumbent administra-
tion is binding on future administrations.
If logic prevailed, any administration
would want its treaty interpretations to
have the force of law on its successors. But
the Reagan White House has gotten itself
into the crazy position of arguing that its
own INF testimony is only transitory and
less than authoritative.
I will ask that the full text of that
editorial be included in the RECORD,
along with one of April 29, and an-
other one from the Sun of April 18.
I quote from the latter editorial Of
April 18, in the Baltimore Sun, enti-
tled,: "The Word of the United
States." That editorial leads off as fol-
lows:
Was Reagan administration testimony on
the INF tir-e-ity-binficng intermediate-range
nuclear forces "authoritative"and binding
on future administrations? Curiously
enough, Reagan officials find themselves ar-
guing vociferously that it was not?that
Senate efforts to give their interpretations
permanence amounts to a legislative assault
on executive prerogatives.
This is a serious constitutional question
despite its Alice in Wonderland qualities. It
Is the major roadblock to Senate ratification
of a pact that on its own merits has wide bi-
partisan support.
Later it goes on to state, and I quote:
Leading the opposition to the White
House view that treaties mean only what
governments of the moment say they mean
is Sen. Sam Nunn, D-Ga. His extensive com-
ments have brought two profound matters
to the fore?one dealing with credibility, the
other dealing with the division of powers be-
tween the Senate and the executive.
We believe an administration that negoti-
ates a treaty should offer testimony that
the Senate can rely upon in giving its assent
to ratification.
Further on, the editorial states:
As much as this newspaper would welcome
INF treaty ratification and the arms control
agreements it might generate, we would
urge the Senate to oppose the cavalier
White House view on treaty interpretation.
The Reagan approach is not conservative; it
is radical.
The PRESIDING OFFICER (Mr.
DIXON). I regret to advise the Sena-
tor his time has expired.
Mr. SARBANES. Would the Senator
yield me an additional 3 minutes?
Mr. BYRD. I yield the Senator 3
minutes.
Mr. SARBANES. In the same vein,
Mr. President, the New York Times in
an editorial on May 25, said in speak-
ing of the President: "If only he would
now agree to a simple, honorable prop-
osition?that the administration
means what it says to the Senate?the
treaty will be his."
The editorial goes on to note:
The need for such explicit reassurance
was shown anew in a little-noticed Federal
court case decided last week that demon-
strated the Administration's determination
to revise treaties as it wishes. In this case, it
tried to reinterpret an obscure treaty con-
cerning Iceland; Judge Harold Greene told a
Justice Department attorney, "You are
taking the same position that the State De-
partment is taking on the iEuromissilel
treaty that whatever is said to the Senate
doesn't mean anything."
The Judge held that reinterpretations
may not violate the "solemn representa-
tions" made to the Senate.
And it concludes with the following
paragraph:
Mr. Reagan can win rousing Senate back-
ing for this sound treaty, and add the final
seal of approval in Moscow, just as he
hopes. He need only agree that when his
Administration tells the Senate what the
treaty means, it means what it says.
I will ask that New York Times edi-
torials of February 9 and May 17 also
be included in the RECORD, as well as
one of May 5, in which the Times
notes, and I quote:
The serious obstacle to ratification, how-
ever, is the so-called Sofaer Doctrine.
Named for Abraham Sofaer, the State De-
partment's legal adviser, it holds that offi-
cial testimony on the meaning of a treaty is
binding only if it is "generally understood,
clearly intended, and relied upon" by the
Senate. Since it's hard to know what this
mumbo-jumbo means, Presidents would be
free to do with treaties as they wish.
The Senate Foreign Relations Committee
hopes to solve the problem, simply and sen-
sibly, by making executive branch testimo-
ny binding.
S6751
In fact, what the Byrd amendment
seeks to do is to make it clear that the
text of the treaty, the provisions of
the resolution of ratification, and the
authoritative representations which
were provided by the President and
his representative to the Senate and
its committees, in seeking Senate con-
sent to ratification go to constitute the
common understanding.
Mr. President, the Washington Post
has also editorialized to the same
effect as the Baltimore Sun and the
New York Times. Let me quote. from
an editorial of May 20 about the im-
portance of this issue. It alludes to the
fact that some may seek to depict this
issue as a rather arcane point of insti-
tutional privilege. The Post says, and I
quote:
But it's not an arcane point. It's common
sense. The Senate is not above being picky
and precious, but here it is insisting on a
procedure that merely reaffirms good faith.
With or without .a summit, the Senate's po-
sition deserves to be upheld.
I will ask unanimous consent that
two other editorials of April 1 and
February 9 from the Post on this sub-
ject also be included in the RECORD. In
the one of February 9, the Post says
and I quote:
Hardball? Yes. A small point of Senate
privilege? No, a large point: the Senate
cannot possibly be asked to approve a treaty
when the administration reserves a right to
say later that it means something other
than what the executive branch asserted at
the time.
The PRESIDING OFFICER. I
regret to advise the Senator all his
time has been consumed.
Mr. BYRD. Does the Senator need 1
more minute?
Mr. SARBANES. I would appreciate
an additional minute.
Mr. BYRD. I yield 1 more Minute.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. SARBANES. Let me emphasize
that editorial comment: "the Senate
cannot possibly be asked to approve a
treaty when the administration re-
serves a right to say later that it
means something other than what the
executive branch asserted at the
time"?at the time that it was seeking
the advice and consent of the Senate
to the treaty. No treaty can come into
force until the Senate advises and con-
sents to its ratification. And in the
course of that process, we receive from
the administration authoritative rep-
resentations as to the meaning of the
treaty.
I am not talking .about situations of
ambiguity or instances in which the
meaning of a particular provision was
not addressed, where perhaps the Ex:
ecutive made no representation.
In those instances in which the ad-
ministration has made authoritative
representations to the Senate, where
they are clear about the meaning of
the treaty, they cannot later, after
advice and consent has been obtained,
reinterpret those provisions. Stop and
think about it for just a moment.
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S 6752 CONGRESSIONAL RECORD -- SENATE
If such reinterpretations are al-
lowed, then the Senate's role has
become a nullity. An administration
can come in and tell the Senate any-
thing it wants to tell it in order to get
advice and consent, and later, turn and
say: "Well, that provision does not
mean what we represented that provi-
sion to mean at the time that we were
seeking your advice and consent."
What does that do to the role of the
Senate? I submit to you, it destroys
our role, and I strongly commend the
majority leader for insisting on sus-
taining our constitutional system with
respect to the treatymaking power and
the role of the Senate in that regard.
Mr. President, I now ask unanimous
consent that all of the articles, ex-
cerpts of which I read into the
RECORD, be printed in full at this point
in the RECORD.
I thank the majority leader and I
yield the floor.
There being no objection, the arti-
cles were ordered to be printed in the
RECORD, EIS follows:
[From the Baltimore (MD) Sun, May 16,
1988]
SENATE TREATY POWERS
Having cleared away obstacles to the INF
treaty in negotiations with the Soviet
Union, the Reagan adminsitration now faces
even tougher bargaining with the United
States Senate. Tougher because this time
the obstacles are of its own making, not of
its adversary. Tougher, because the last-
minute glitches with the Russians pushed
back Senate debate a week, leaving only a
few days for ratification of the pact elimi-
nating intermediate-range nuclear forces
before the Moscow summit.
The administration deserves to lose this
face-off with the Senate for two key rea-
sons: First, its attempt to reinterpret the
1972 Anti-Ballistic Missile treaty in order to
promote the Strategic Defense Initiative is
so obviously contrary to law and custom
that it cannot bear close scrutiny. Second,
the Senate's need to reassert its constitu-
tional treaty powers so obviously outweighs
President Reagan's desire for a pro forma
diplomatic ceremony with Soviet General
Secretary Mikhail S. Gorbachev that the
White House is bound to blink.
Humiliation of the president is hardly a
wise gesture before the summit. Therefore,
American citizens have a right to expect the
executive and legislative branches to work
out some face-saving language to cover an
administration retreat on the ABM issue. At
no point, however, should the Senate with-
draw from its insistence that treaty testimo-
ny offered by an incumbent administration
is binding on future administrations.
If logic prevailed, any administration
would want its treaty interpretations to
have the force of law on its successors. But
the Reagan White House has gotten itself
Into the crazy position of arguing that its
own INF testimony is only transitory and
less than authoritative. It also wants the
INF treaty to ban forever the very kind of
futuristic technologies (lasers and particle
beams) that it wants excluded from ABM
coverage.
The Senate's seriousness about its treaty
powers was a factor in the administration's
successful bid to stop the Kremlin from
fudging on the INF pact. After the treaty
was signed Dec. 6, U.S. negotiators discov-
ered the Russians wanted to bar verification
teams from looking into containers holding
only stages or parts of intermediate missiles;
to limit-inspection rights within missile test
sites or launching sites, and to restrict the
use of cameras and other monitoring equip-
ment. Both the White House and the
Senate agreed this was a serious attack on
Intrusive verification provisions that could
set a pattern for more complicated pacts
dealing with strategic weapons.
Moscow's readiness to accede to American
demands on verification is a sign that Mr.
Gorbachev wants an INF treaty as much as
Mr. Reagan. So Senate leverage could be
strong enough to pry both summit leaders
from obtructive positions. It is leverage that
should be used wisely and resolutely, but
not to excess.
[Prom the Baltimore (MD) Sun, Apr. 29,
1988]
CAUGHT IN ITS OWN ILLOGIC
The Reagan administration keeps tripping
over its own feet in its race to obtain ratifi-
cation of the treaty banning intermediate-
range nuclear forces before the next
Reagan-Gorbachev summit. Its latest prat-
fall has arisen from its admitted failure to
negotiate clear provisions on just what kind
of land-based missiles would be forbidden by
the INF pact. There is no argument that
the treaty would eliminate missiles armed
with warheads, either nuclear or conven-
tional. But what about futuristic missiles,
such as those equipped with lasers or micro-
wave pulse generators? And what about sur-
veillance, radar-jamming and other types of
unarmed drones and remotely piloted vehi-
cles?
Sen. Sam Nunn, D-Ga., chairman of the
Senate Armed Services Committee, has ex-
tracted the astounding confession from the
administration that the latter two catego-
ries of missiles were not even mentioned in
the long negotiations on the INF treaty. His
objections have extracted some clarifica-
tions from the Russians. But so far enough
ambiguities remain to justify Senate de-
mands for more explicit assurances from
the Kremlin, even if this complicates prep-
arations for the summit.
It is ironic that the same administration
that has been. arguing for a "broad" inter-
pretation of the 1972 Anti-Ballistic Missile
(ABM) treaty so it could deploy futuristic
strategic defense systems is now pushing for
an treaty that supposedly would bar futuris-
tic medium-range systems. It is even more
ironic that to protect its tortured illogic in
the ABM case it holds that its own defini-
tions of the INF treaty are subject to rein-
terpretation by future administrations. No
wonder the Senate feels a need to negotiate
a pact with its own government before it
agrees to ratification of the Reagan-Gorba-
chev treaty.
Former President Richard Nixon has cate-
gorically rejected the Reagan administra-
tion approach. In an exchange with the
American Society of Newspaper Editors ear-
lier this month, he said he had never antici-
pated that a succeeding administration
would try to reinterpret testimony offered
on the treaty by his own officials. He said
Senator Nunn is "absolutely correct" in his
constitutional argument that "what a treaty
means is what and how it was presented to
the Senate." Rather than try to reinterpret
the treaty and risk senatorial ire, Mr. Nixon
said the Reagan administration -ShoUld
either have gotten the Kremlin to accept its
views or should have abrogated the treaty.
Although this newspaper has consistently
supported research on strategic defense, we
believe the United States is ill-served by the
sophistry and contradiction built into the
Reagan administration's legal and diplomat-
ic positions. It is better to get these matters
straightened out right now so that the
May 26, 1988
credibility of future U.S. administrations is
not compromised by the Reagan administra-
tion's lack thereof.
[Prom the Baltimore (MD) Sun, Apr. 18,
1988]
THE WORD OF THE UNITED STATES
Was Reagan administration testimony on
the INF treaty banning intermediate-range
nuclear forces "authoritative" and binding
on future administrations? Curiously
enough, Reagan officials find themselves ar-
guing vociferously that it was not?that
Senate efforts to give their interpretations
permanence amounts to a legislative assault
on executive prerogatives.
This is a serious constitutional question
despite its Alice in Wonderland qualities. It
is the major roadblock to Senate ratification
of a pact that on its own merits has wide bi-
partisan support.
What brought this issue to the fore is a
persistent Reagan effort to discard Nixon
administration testimony on the 1972 Anti-
Ballistic Missile Treaty and to offer a broad-
er interpretation that would permit space-
based testing of the Strategic Defense Initi-
ative. Last year Congress turned to its
power of the purse to cut off funds for tests
that Nixon testimony would bar. But
Reagan officials have returned to the fray,
even if it means putting the INF treaty and
the coming summit at risk.
Leading the opposition to the White
House view that treaties mean only what
governments of the moment say they mean
is Sen. Sam Nunn, D-Ga. His extensive com-
ments have brought two profound matters
to the fore?one dealing with credibility, the
other dealing with the division of powers be-
tween the Senate and the executive.
We believe an administration that negoti-
ates a treaty should offer testimony that
the Senate can rely upon in giving its assent
to ratification. Otherwise, there is no reason
why ..the Senate, or foreign powers, should
rely on the word of the United States gov-
ernment or, indeed, why other governments
should not reinterpret pacts willy-nilly.
Treatjes as such would be rendered unreli-
able: international law would become more
of a jungle.
On the division of powers, the assumption
that each administration can reinterpret
treaties at will is not only outrageous but
unworkable. Thousands of pacts with for-
eign,countries are as much part of the law
of the land as domestic statutes. Chaos
would be the product of a doctrine that ren-
ders legislative history meaningless.
As much as this newspaper would welcome
/NF treaty ratification and the arms control
agreements it might generate, we would
urge the Senate to oppose the cavalier
White House view on treaty interpretation.
The Reagan approach is not conservative; it
Is radical. It is not principled; it is a tortured
exercise to justify strategic defense tests
clearly banned by the 1972 ABM treaty.
The Senate Foreign Relations Committee
has approved a reservation to the INF'
treaty that says the United States will inter-
pret the treaty "in accordance with the un-
derstanding . . . shared by the executive
and the Senate at the time of Senate con-
sent to ratification." This is not a "killer
amendment." If the Reagan administration
wishes to make it so, a via have to accept
responsibility for delaying INF treaty ratifi-
cation.
[From the New York Times, May 25, 19881
THE TREATY AND /TS ENEMIES
For a while, it looked as though several
willful men could derail the Euromissile
treaty and President Reagan's wish to make
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE S 6753
the treaty a centerpiece of his summit meet-
ing in. Moscow next week. Two of them are
Jesse Helms and Gordon Humphrey, Re-
publican Senators who have been trying to
obstruct ratification with one niggling
amendment after another.
Their obstructionism now ? seems to have
been swept away, leaving just one willful
man blocking fulfillment of President Rea-
gan's wish: President Reagan.
If only he would now agree to a simple,
honorable proposition?that the Adtninis-
tration means what it says to the Senate?
the treaty will be his.
- This final obstacle arises from the Admin-
istration's devotion to Star Wars. Wanting
to conduct tests prohibited by the Antibal-
listic Missile Treaty when it was presented
to the Senate under President Nixon. the
Reagan Administration hit on a novel idea:
reinterpret the treaty. The State Depart-
ment's legal adviser, Abraham Sofaer,
obliged with an opinion saying- that what an
Administration tells the Senate about a
treaty's meaning' is not necessarily binding.
This expedient assault on the Senate's
treaty responsibilities understandably of-
fended the Foreign Relations Committee. It
approved this treaty to eliminate Soviet and
U.S. missiles with ranges of 30G to 3,400
miles and attached only one condition: Tes-
timony to the Senate on the treaty's mean-
ing indeed binding.
The need for such explicit reassurance
was shown anew in a little-noticed Federal
court case decided last week that demon-
strated the Administration's determination
to revise treaties as it wishes In this ease, it
tried to reinterpret an obscure treaty con-
cerning Iceland; Judge Harold Greene told a
Justice Department attorney, "You are
taking the same position that the State De-
partment is taking on the [Euromissilel
treaty, that whatever is said to the Senate
doesn't mean any thing." The judge held
that reinterpretations may not violate "the
solemn representations" made to the
Senate:.
Unless the Administration is willing to re-
assure the Senate as to the integrity of its
role in treaty making, the ratification Mr.
Reagan seeks is unlikely. But once reassur-
ance is given, ratification will follow swiftly
and overwhelmingly.
The United States has not ratified an
arms control treaty for 16 years. This treaty
richly warrants ratification. It requires the
Soviet Union to destroy missiles that can
carry four times as many nuclear warheads
as the missile to be destroyed by the U.S. It
is the most thoroughly examined, exhaus-
tive detailed arms control pact in history.
Mr. Reagan can win rousing Senate back-
ing for this sound treaty, and add the final
seal of approval in Moscow, just as he
hopes. He need only agree that when his
Administration tells the Senate what the
treaty means, it means what it says.
[From the New York Times, May 17, 1988]
VERIFY, CLARIFY, RATIFY
The Senate rightly held back on ratifying
the treaty on medium-range missiles in
Europe when Soviet-U.S. verification differ-
ences- sprang up. Now Secretary of State
Shultz is back from Geneva with the differ-
ences resolved.
If the Senate now moves promptly, it
could ratify the treaty in time for the Presi-
dent's trip to Moscow late this month. If
not, the necessary spur of the summit dead-
line will be lost, risking the loss of the trea-
ty's benefits, specific and on Soviet-U.S. re-
lations in general.
The Senate Foreign Relations Committee
six weeks ago approved the treaty, which
would eliminate all Soviet and U.S. missiles
with ranges between 300 and 3,400 miles.
Then prospective inspection teams from the
two countries began to discuss how the trea-
ty's many verification provisions would be
implemented. Disagreements appeared,
then grew, and finally -Mr. Shultz and the
Soviet Foreign Minister, Eduard Shevard-
nadze, had to take them up last week in
Geneva.
The actual details were minor. They were
important because the Russians seemed to
be backsliding. Mr. Shultz's report yester-
day was thus heartening: The Russians
largely assented to what the U.S. held to be
the original terms. The treaty Will not cover
West German-owned missiles. U.S. readings
prevailed on the size of containers open to
Inspection, the right to inspect any build-
ings within monitoring sites and the unre-
stricted-use of cameras.
Growing stability in U.S.-Soviet relations
made this resolution easier. A successfully
concluded treaty will contribute to this sta-
bility, moving away from unthinking hostili-
ty and a wasteful arms race. But if the
Senate should now fail to ratify. America
will squander a precious chance to cement a
bipartisan domestic consensus for arms con-
trol.
Besides this benefit to better relations,
the treaty will require the Russians to de-
stroy missiles than can carry four times as
many nuclear warheads as the missiles the
U.S. would destroy. And its verification pro-
visions the most extensive ever, set a valua-
-ble precedent.
These benefits have won the treaty solid
bipartisan backing in the Senate. Prospects
for a smooth ratification are good, but for
one issue. Many senators are understand-
ably reluctant to ratify a treaty presented
by this Administration because it claims the
right to reinterpret treaties unilaterally.
The Administration has made that claim in
reckless pursuit of its Star Wars dream.
The one Condition attached by the Senate
Foreign Relations Committee is that testi-?
mony to the Senate on the treaty's meaning
is binding. To win ratification President
Reagan will need to swallow hard and
accept this clarification.
RatificatiOn is all the more important be-
cause the U.S. and Soviet Union have scaled
back what they hope to achieve by the
summit meeting in the way of strategic
arms reductions. President Reagan needs to
take this treaty to Moscow as a small but
solid gain for national security, arms control
and saner international relations.
[From the New York Times, May 5, 1988]
TILE DOCTRINE OR THE TREATY?
The Reagan Administration negotiated an
important treaty with the Soviet Union that
would eliminate Euromissiles. Now it jeop-
ardizes that accomplishment by insisting on
a noval and absurd Presidential doctrine
that few senators will or should swallow.
The Administration created the problem
by asserting the right to reinterpret treaties
unilaterally, and then doing just that with
the Antiballistic Missile Treaty to suit Presi-
dent Reagan's Star Wars programs. The
Senate Foreign Relations Committee right-
ly responded by attaching a condition to the
new Euromissile treaty: Neither Mr. Reagan
nor future Presidents would be permitted to
disregard Understandings of a treaty's
meaning at the time of ratification.
If President Reagan wishes to see his new
Euromissile treaty ratified, he will have to
accept the committee's assertion of good
sense and sound constitutional procedure.
The treaty comes to the Senate floor this
week, in plenty of time to debate, approve
and send it with President Reagan to
Moscow on May 29. Three last-minute
glitches have sprung up. none likely to
block ratification.
Senate leaders vow to work furiously with
the Administration on these three problems
before floor debate begins. The Russians
have been edging off commitments on on-
site inspections; the Administration is confi-
dent Moscow will reaffirm earlier under-
standings. The treaty ignored futuristic
technologies; now language is being worked
out, There are concerns about U.S. long-
range monitoring capability; the Senate and
the White House will have to provide for
this.
The serious obstacle to ratification, how-
ever, is the so-called Sofaer Doctrine.
Named for Abraham Sofaer, the State De-
partment's legal adviser, it holds that offi-
cial testimony on the meaning of a treaty is
binding only if it is "generally understood,
clearly intended, and relied upon" by the
Senate. Since it's hard to know what this
mumbo-jumbo means, Presidents would be
free to do with treaties as they wish.
The Senate Foreign Relations Committee
hopes to solve the problem, simply and sen-
sibly, by making executive branch testimo-
ny binding. Yet the Administration has per-
suaded some loyalist senators to oppose it, a
move that could well sink the treaty.
If the Senate does not approve the treaty
before the Reagan-Gorbachev summit meet-
ing, it's likely not to happen under Presi-
dent Reagan?and then perhaps never. Pres-
idential campaigns and the first year of a
new Administration are not conducive to
ratifying arms agreements. The choice of
doctrine or treaty rests with the White
House.
[From the Washington Post, May 20, 1988]
INF: Tim COUNTDOWN
The mischief wrought by the Reagan ad-
ministration's ardor for its vision of nuclear
defense in space continues to dog consuma-
tion of its most important diplomatic suc-
cess, the INF Treaty. To make possible
"Star Wars" tests more advanced than the
political consensus would support, the ad-
ministration discovered some previously un-
detected wiggle room in 1972 ABM Treaty?
it, became known as the Sofaer Doctrine,
after State Department lawyer Abraham
Sofaer. Congress found ways to block the
Star Wars tests, but the administration's
claim of a basis on which the executive can
reinterpret a treaty on its own has carried
over into Senate consideration of the Inter-
mediate-Range Nuclear Forces Treaty.
A few respected Republicans who support
the treaty have signed on in defense of the
president's refusal to weaken his grip on the
Sofaer Doctrine, and that makes what oth-
erwise might be an open-and-shut case a bit
less so_ But the Senate Democrats seem to
us to have much the better of the argument
all the same. They are asking simply that
the executive not to be permitted to walk
away from the shared interpretation of a
treaty reached by the executive and the
Senate at the time of ratification: no later
unilateral rereadings. They are saying that
it cannot be, as the administration holds,
that some things the executive tells the
Senate during a ratification debate are bind-
ing and other things are not.
A kind of political "chicken" is being
played here. The treaty itself is assured of
approval. Everyone can see how eager the
president is to carry it, ratified, to the
Moscow summit, which opens in barelai a
week, and almost everyone agrees it would
be a good thing, though not an absolute ne-
cessity, for the treaty to be wrapped up by
then. There is a general appreciation that
the Soviets did their part by answering
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S 6754 CONGRESSIONAL RECORD ? SENATE
promptly and constructively the Senate's
last-minute queries on verification.
The calculation in the the Senate seems
to be that a president with his eye on histo-
ry will swallow the "Biden condition" rather
than go to Moscow with no treaty. The cal-
culation in the White House seems to be
that the Senate will not want to expose
itself to an election-year charge of under-
cutting the president for what can be de-
picted as a rather arcane point of institu-
tional privilege. But it's not an arcane point.
It's common sense. The Senate is not above
being picky and precious, but here it is in-
sisting on a procedure that merely reaffirms
good faith. With or without a summit, the
Senate's position deserves to be upheld.
[From the New York Times, Feb. 9, 1988]
SOUND WAY OUT OF THE TREATY :TRAP
Dumb. Deceitful. Self-defeating. The
Reagan Administration set senators to sput-
tering when it offered up a new doctrine on
treaties: Administration testimony during
hearings on treaty approval need not be
binding on Presidents. That doctrine, in-
tended to protect President Reagan's Star
Wars dream, prompted senatorial fury over
legal treachery. Now the anger returns to
haunt?perhaps even hinder?approval of
the Administration's Euro-missile treaty.
Senators eager to clarify and avenge may
hold the new treaty hostage until the Ad-
ministration agrees to clever language to
circumvent the legal problem. They would
do well to stop before they compound the
confusion and jeopardize the treaty. There's
a simpler remedy.
The intricate constitutional, institutional
and legal tale deserves to be savored and dis-
sected. It began in 1983 when Mr. Reagan
announced his goal of creating space-based
defense. The Administration was informed
that the scheme ran counter to the Antibal-
listic Missile Treaty of 1972, which restricts
testing to fixed land-based sites. At least
that's what the Senate was told during rati-
fication hearings by the Nixon Administra-
tion.
The Reagan Administration found this in-
terpretation unacceptable and discovered a
loophole. A careful study of the full record,
it claimed, showed that the Soviet Union
and the U.S. never agreed to restrict the
testing of exotic technologies. No matter
that officials had testified otherwise to the
Senate and that Moscow and Washington
had abided by the original interpretation.
Many senators protested. The White
House, however, stood its shaky ground, cre-
ating an impasse. Everyone knew the issue
would be tested with the Euromissile treaty.
The hearings on this treaty proceeded
smoothly for two weeks. Enter Senators
Robert Byrd and Sam Nunn. They did not
insist on forcing the Administration to back
down on the general legal principle and
abandon Star Wars. They wanted a compro-
mise: Let Secretary of State Shultz agree in
a letter that in the case of Euromissiles, the
Administration's testimony on the meaning
of the treaty is consistent with the final
terms of the accord and will be considered
"authoritative and binding."
Under pressure from conservatives, the
Administration decided to say yes to "au-
thoritative" but not to "binding." Binding,
it was reckoned, would be too prejudicial to
the Star Wars stance.
Thus a standoff, and luckily so for the
Senate. The Nunn-Byrd compromise was
flawed. It would have given too much away
on the legal principle. Administration offi-
cials could say they negotiated a deal on
Euromissiles without having to back down
on the ABM treaty. Nor would a letter from
the Secretary of State be legally binding.
Now, enter Senator Joseph Biden with a
remedy. He would sidestep negotiations
with the Administration. Why weaken the
Senate's constitutional and institutional po-
sition by bargaining, and hold up the treaty
as well? Instead, he would ask the Senate by
majority vote to attach to the treaty a state-
ment. It would declare that the Administra-
tion's testimony is authoritative and binding
and in accord with the understanding of the
treaty as shared by the Senate and the ex-
ecutive branch at ratification.
Such an attachment makes sense. It would
not wholly clarify the general legal dispute,
but by passihg it, senators would reaffirm
their constitutional responsibilities. It
would be binding, yet would not require re-
negotiation with Moscow. And it would not
delay ratification of the sound and popular
Euromissile treaty.
[From the Washington Post, Feb. 9, 1988]
How TO KILL THE INF TREATY
Think hard, now. What Is the most effi-
cient and certain way the Reagan adminis-
tration might ensure the collapse of its No.
1 foreign policy project, securing Senate ap-
proval for ratification of the INF Treaty?
This problem may already have been solved.
The administration, by prolonging its dis-
pute with Sens. Nunn and Byrd, may be
doing everything necessary to derail the
treaty and consummate a political, diplo-
matic and strategic disaster.
The trouble arises from the course Presi-
dent Reagan has chosen on his Strategic
Defense Initiative. When he wanted to open
the door to ambitious tatting of this space-
based missile defense system, he found that
the Anti-Ballistic Missile Treaty of 1972
barred the way. The lawyers, however, came
up with something: the notion that al-
though the way was barred by what the ex-
ecutive branch had told the Senate the
treaty meant at the time, the way was actu-
ally opened by what the treaty's secret ne-
gotiating record revealed.
Right at that point, a flag should have
gone up over at the State Department.
Somebody should have said: Wait a minute.
What about the next time? Suppose the
Senate asks how it can believe iwhat we're
saying about the next treaty? Instead, State
Department legal adviser Abraham Sofaer
said. . . Well, what he said is what has Sam
Nunn and Robert Byrd insisting that if the
administration is not prepared to vouch for
its own testimony before the Senate, then
the Senate is going to have to examine the
(30-volume)- negotiating record "exhaustive-
ly" and meanwhile put the INF Treaty on
hold. Secretary of State George Shultz ap-
peared ready at one point to accommodate
to the Senate position but then, it's report-
ed, backed off.
Hardball? Yes. A small point of Senate
privilege? No, a large point: the Senate
cannot possibly be asked to approve a treaty
when the administration reserves a right to
say later that it means something other
than what the executive branch asserted at
the time. A point on which the public (and
perhaps other senators) will not support the
insisting senators? An administration with
the ambitious foreign policy agenda pf this
one would have to be very careless to make
a full-scale test. A point important in order
to preserve a broad SDI testing- option? If
that's so, it's better to suspend the INF
debate right now and sort out the cluttered
SDI issue before the president goes any far-
ther down the diplomatic path.
[From the Washington Post, Apr. 1, 1988]
FORWARD WITH THE INF TREATY
The Senate Foreign Relations Committee
has sent President Reagan's first arms con-
May 26, 1988
trol treaty to the Senate floor by a vote of
17 to 2. It was the expected result, and the
right one. In several months of hearings on
the INF treaty, which Mr. Reagan and Mr.
Gorbachev signed last December, substan-
tive objections were considered and found to
be unpersuasive. Not that this treaty elimi-
nating all of the two powers' intermediate-
range missiles gained in stature. On the con-
trary, a consensus deepened that the treaty
Is a politically pioneering but strategically
limited measure whose chief significance is
to propel its signers on to larger tasks in re-
ducing conventional, chemical and strategic
arms. Still the treaty itself, as a contract
standing on its own, has held up.
A cloud nevertheless hangs over the pros-
pect of certain and prompt Senate ratifica-
tion. It arises from the clash over treaty re-
interpretation that a blindered administra-
tion carelessly precipitated three years ago
when it announced that the ABM Treaty of
1972 meant something other than what suc-
cessive administrations had said all along.
Mr. Reagan intended to clear a legal path
for otherwise prohibited tests of his pro-
posed strategic defense system, SDI. But
the Senate, looking at SDI but beyond SDI,
,saw a challenge to its institutional powers.
A fight over which branch has the last word
on interpreting a treaty is now going to be
carried to the floor, and the INF treaty is
hostage to it. The lawyers and the constitu-
tional scholars have learned things to say,
but the real burden of an expeditious reso-
lution rests with the president, who started
this distracting and unnecessary fight in the
first place.
Treaty debates seem always to be about
something other than the text on the table.
This has produced some questionable re-
sults in the past, but -our impression is that
this time around the results are good. The
American political system was shocked by
the Reagan-Gorbachev treaty and needed
an interlude to consider not simply the stra-
tegic implications but the whole idea of
dealing again with the Kremlin?something
that had seemed remote when Ronald
Reagan came to power. Coincidentally but
usefully, the debate overlaps the American
political campaign. The upshot of the whole
passage, we think, is that people understand
better the promise and the complexities of
moving forward, carefully with the Krem-
lin. It may also be worth noting that denun-
ciations of the prospective INF treaty by
most of the Republican candidates in the
face of George Bush's strong support of it
didn't seem to do them a lot of good.
The PRESIDING OFFICER. Who
yields time?
Mr. WILSON addressed the Chair.
The PRESIDEING OFFICER. The
Senator from California.
Mr. WILSON. Mr. President, I yield
5 minutes to the Senator from Indi-
ana.
The PRESIDING OFFICER. The
Senator from Indiana is recognized for
5 minutes.
Mr. QUAYLE. Mr. President, I think
what we, unfortunately, have before
this Senate today, is in my judgment,
a constitutional power play. We have a
situation where an administration is
slowly fading into history and a
Senate that now sees an opportunity
to reinterpret the Constitution; rein-
terpret what the Supreme Court says;
reinterpret what international law
calls for and to do something that I
think is not only totally unnecessary,
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May 26, 1988 . CONGRESSIONAL RECORD SENATE
but will utlimately cause more prob-
lems in the future.
This all stems from the ABM debate,
no matter whether everybody stands
up here and says, "Oh, this isn't relat-
ed to the ABM debate?! Everybody
knows it is related to the ABM debate.
The Senator from South Carolina is
going to get into that later on.
They keep talking about reinterpre-
tation. In the ABM debate, there was
not any reinterpretation. It was never
discussed, except in passing reference.
I think one Senator talked on the
floor of the Senate about it.
Reinterpretation? It was never inter-
preted, but here the Senate today is
going to do plenty of reinterpretation
on the Byrd amendment, the Biden
amendment. We are going to reinter-
pret our Constitution, what our courts
say it means and the principles of
international law.
I submit that it is fundamentally
wrong for three reasons: One, it is con-
trary to international law. Second, it is
contrary to our Constitution. Third, it
will create more problems than it
solves.
International law says that to deter-
mine a treaty's meaning we consult
the treaty first; we look then at the
negotiating record and at subsequent
practice. This amendment, basically,
says, "Don't worry about the negotiat-
ing record after ratification. The nego-
tiating record is not that relevant."
The negotiating record is relevant.
You have to go into the negotiating
record to find out, as a matter of fact,
that what the people told you hap-
pend really happened, and how it hap-
pened. Yet, the negotiating record has
been very important on a number of
things.
This- amendment is contrary to the
principles international law. It is con-
trary to our law. The Constitution
gives the President of the United
States the power to interpret treaties
and to implement treaties. Nowhere
does it say in the Constitution that
the Senate has the constitutional rd-
sponsibility to execute or interpret
treaties after they are ratified: Inter-
pretation is done by the executive
branch. Passing this amendment is re-
interpreting this point, it overturns it.
Finally, Mr. President, this amend-
ment is going to create more problems
than it solves.
I find it very interesting that this
amendment talks about the definition
of "commonly understood." What is
"commonly understood"? During the
hearings, we were told that the defini-
tion of a weapon was commonly under-
stood; that everyone commonly under-
stood what the definition of a weapon
is. The definition of a weapon was
something that was designed to
damage or destroy its target. Common-
ly understood: The Senate was given
this definition repeatedly in ,authorita-
tive testimony.
But the testimony turned out to be a
bunch of nonsense. The definition was
not commonly understood. As we es-
tablished on the floor here this morn-
ing in debate, the definition was made
up by our negotiators alone after the
treaty was signed. Yet we were told by
authoritative?sources that it Was com-
monly understood. The Senate luckily
did not accept that. The Armed Serv-
ices Committee did not accept it, and
the other committees did not accept it.
We said we did not believe that was
what was commonly understood, and
we made our negotiators go back and
go through a lot of new negotiations
with the diplomatic notes of exchange
to get the Soviet Union pinned down
on what was "commonly understood"
by "weapons delivery vehicle."
But this amendment says: The
United States shall interpret this
treaty in accordance with the shared
understanding of the Senate and exec-
utive as reflected by the executive's
authoritative testimony on the treaty
before the Senate.
Well, we were told what was com-
monly understood, and we found out it
really was not commonly understood.
We had dissension in the administra-
tion on what was commonly under-
stood. We had dissension in the com-
mittees on what was commonly under-
stood, but we were told that. You can
see where we would be with this kind
of an amendment on this treaty in the
future. As I said, luckily, we cleared
this one up. What about the problems
we didn't clear up or even discuss? Will
they be commonly understood? I
doubt it.
I say that what is commonly under-
stood is that this is a rehash of the-
ABM debate. What is commonly un-
derstood is that we are simply reinter-
preting our constitution and the prin-
ciples of international law.
This is a constitutional power grab,
and what is of interest is that this
amendment, which will only be bind-
ing on our officials, not the Soviets,
will become binding domestic law by a
majority vote of just the Senate. It
will not be a majority vote of both
Houses as the Constitution requires,
but only a majority vote of the Senate.
The only thing I commonly under-
stand about this amendment is that it
is contrary to international law, to our
Constitution, and it is unnecessary.
Mr. President, I hope it is rejected.
The PRESIDING 010FICER. Who
yields time?
Several Senators addressed the
Chair.
The PRESIDING OFFICER. The
Senator from California.
Mr. WILSON. Mr. President, I find
myself in the interesting and enter-
taining position of mediating between
Democratic friends and colleagues. I
was going to suggest, partly by way of
response to my colleague from Califor-
nia, that this is not a purely partisan
matter. The unhappiness with this res-
olution is shared by Democratic Mem-
bers as well. Apparently, he was under
the mistaken belief that it is purely a
Republican concern, and it is not.
S 6755
The majority leader, in his request
for unanimous consent, sought and ob-
tained consent that the Senator from
South Carolina [Mr. HoLLnws] should
have 20 minutes of his own. I was
going to suggest, if there was no objec-
tion on the part of the majority, and
there is =le on the Republic-an side,
to his going forward now. If the Sena-
tor from Michigan wishes to go first.
Mr. BYRD. I yield 5 minutes to Mr.
LEVIN.
The PRESIDING OFFICER. The
Senator from Michigan is recognized
for 5 minutes.
Mr. LEVIN. Mr. President, I want to
congratulate and commend Senator
BYRD and all the others who have par-
ticipated in working out this Byrd sub-
stitute. It represents the Senate at its
best, at its bipartisan best, because
there will be a strong bipartisan vote
for this bipartisan substitute that is
offered by Senator BYRD.
The basic issue is whether or not au-
thoritative representation of the exec-
utive branch as to the meaning and in-
terpretation of the treaty are going to
be binding on the executive branch.
That is the gut issue here. It is the
issue which we all have to decide as
Members of this institution.
Inside that issue there is another
issue. Who has the burden of showing
that those representations are wrong?
Should that burden be on the Senate
to go to that portion of the negotiat-
ing record which is given to us?and I
emphasize only a portion of the nego-
tiating history is given to us?to sniff
out the. portions of the negotiating
history, thousands of pages some-
times, and prove that the representa-
tions of the executive branch to this
body as to the meaning of a treaty- are
wrong?
That is putting the burden in exact-
ly the wrong place. We do not have
the documents that make up the nego-
tiating history. We have not created
those documents. They are not inour
possession. The burden belongs on the
party that has created the negotiating
history?the executive branch; that
has possession of the negotiating his-
tory?the executive branch. To say
that somehow or other we have the
burden of going through whatever
pieces of negotiating history are of-
fered us to show that authoritative
representations to us are wrong puts
an unfair burden on this body, a
burden that no court would ever put
on a party before it, since it is the
other party, the executive branch,
which is in possession of that history
and which is making the representa-
tions.
Why should the burden of Proving a
representation false be on the party
that is hearing the representation,
rather than on the party that is
making the representation? What kind
of shift of burden does that represent?
A totally unacceptable shift of burden,
may I suggest.
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S 6756 CONGRESSIONAL RECORD SENATE May 26, 1988
If the opponents of the Byrd substi-
tute are correct, we would have to
make all of these representations to us
part of the resolution of ratification.
In order to make certain that what
has been told us is binding on the ex-
ecutive branch, we would have to in-
corporate every single one of those
representations which are relevant
and germane and that we care about?
and this could be hundreds and per-
haps thousands of representations?we
would then have to go and make them
part of a resolution of ratification in
order to make them binding on the ex-
ecutive branch we are told.
That is a cumbersome process, a
process which will make the treaty
ratification procedure completely un-
workable. It will bog down, But that is
what would happen. If this amend-
ment is defeated, what we are going to
have to do is make all of those repre-
sentations part of the resolution of
ratification.
Now, let us say we followed that
process. Let us assume we accepted
that challenge, we took on ourselves
the burden of showing that represen-
tations were false, we took on our-
selves the burden of making all those
representations part of the Resolution
of Ratification. Let us say we did
accept that challenge. What then? We
still have two treaties. My friend from
Pennsylvania says his approach avoids
two treaties. No, it does not. No, it
does not. Because if we make those
representations that have been made
to us explicitly a part of the Resolu-
tion of Ratification, I think my friend
from Pennsylvania would concede that
they are then binding on the executive
branch.
Mr. Culvahouse concedes that. And
then if they are binding on the execu-
tive branch because they have been
explicitly made part of the Resolution
of Ratification, they are now explicit
and no longer just implicit. We then
have two treaties just the way we have
two treaties under the analysis of the
Senator from Pennsylvania.
Let me tell you why it works that
way. And I am now quoting from the
Culvahouse letter. Culvahouse says in
his letter of March 17,
As a matter of domestic law, the President
is bound by shared interpretations which
were both authoritatively communicated to
the Senate by the executive and clearly in-
tended, generally understood and relied
upon by the Senate in its advice and consent
to ratification.
And this is the key line.
This is true,
Culvahouse says,
even if the treaty negotiating record and
subsequent practice indicate an interpreta-
tion contrary to that shared understanding.
I would ask my friend, the majority
leader, if I could have 2 more minutes.
Mr. BYRD. Mr. President, I yield 2
additional minutes.
The PRESIDING OFFICER. The
Senator from Michigan is recognized
for 2 more minutes.
Mr. LEVIN. Unless my friend from
Pennsylvania rejects the Culvahouse
approach?and I assume he does not
and accepts it?he is saying make it ex-
plicit, show you relied upon it, prove
you intended it, and then he says it is
OK to have two treaties.
Now, what kind of principle is that?
You wrap yourself in a principle that
you do not want to have two treaties,
one between us and the Executive and
one between the Executive and the
other country, but then you say,
Oh, but it is OK to violate that providing
you make it explicit in the Resolution of
Ratification. EXCERPT?JUDGE HAROLD H. GREENE
Just make it explicit, we are told by OPINION
Mr. Culvahouse.
So what I am suggesting, Mr. Presi-
dent, is that the approach of the Sena-
tor from Pennsylvania does not indeed
avoid the two-treaty problem at all. He
has wrapped himself in a principle and
then violated it unless he rejects the
Culvahouse approach.
Now, I reject the Culvahouse ap-
proach because it is not logical and it
is burdensome to say that we have to
make those representations which
have been made to us explicit. I think
we have a right to rely on the repre-
sentations of the executive branch. If
we are smart, we will check the negoti-
ating record in many instances where
there is some indication that those
representations may be shaky or there
may be other reasons for checking the
negotiating record.
So my friend was precisely wrong
when he asked the Senator from Cali-
fornia whether or not it makes any
sense to support an amendment which
says that the negotiating record is not
material. This amendment does not
say the negotiating record is not mate-
rial. Not at all. The negotiating record
remains material to our deliberations.
It is material in these deliberations.
So the conclusion is this. Opponents
would give us a burden which does not
belong to us but belongs to the party
that is making the representations,
the same party that has in its posses-
sion the entire negotiating history. It
would create a cumbersome process
because we would be required to put
all of those representations to us ex-
plicitly into the resolution of ratifica-
tion, and it would do so to achieve no
principle, because if we accepted that
challenge and incorporated all of
those representations in the resolution
of ratification, we then would still
have two treaties, one binding on the
executive branch and the Senate and
one between the executive branch and
the Soviet Union.
I hope we will adopt this amend-
ment. The Byrd substitute carries out
the most important institutional, not
only prerogatives but obligations of
the Senate in the treatymaking proc-
ess. Without this amendment and the
principles it embodies, the Senate's
function will have been severely di-
minished because we will never know
what the real treaty is, the real treaty
being something out there that was
negotiated between the executive
branch and the other country. We
could then not rely on the representa-
tions that have been made to this
body by the executive branch. So I
hope there is an overwhelming biparti-
san vote for this amendment.
Mr. President, I ask unanimous con-
sent that a portion of Judge Greene's
opinion also be printed in the RECORD.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
(Civil Action No. 88-0992)
This is the third time that these parties
have been before the Court with respect to
similar controversies.*
In October 1985, at the request of Rain-
bow Navigation, Inc. (Rainbow), the Court
issued an injunction against the Depart-
ment of the Navy, restraining Navy plans to
deprive Rainbow of the preference granted
to it by the Cargo ? ? *.
Similarly, the treaty goes on to state in
Article IV that the "provisions of this
Treaty and any implementing arrangements
concluded pursuant to Article I shall apply
notwithstanding any prior inconsistent law
or regulation of the United States of Amer-
ica. . ." Thus, the treaty mandates in
terms that, for domestic law purposes, it dis-
places existing American law.
Perhaps even more significant than the
treaty language are the representations
made by Executive Branch officials to the
United States Senate in connection with the
ratification proceedings. These statements,
discussed below, clearly support the inter-
pretation that rights would vest without
further legislation, for the officials repre-
sented to the Senate that if ratified, the
treaty would protect the existing U.S./flag
presence on the United States-Iceland
route."
Thus, at the hearings on ratification of
the treaty, the Honorable Edward J. Der-
winski, Counselor of the Department of
State, with Rear Admiral Walter T. Piotti,
Jr., Commander of the Military Sealift
Command, at his side, assured the Senate
that he agreed with the statement by Amer-
ican maritime organizations of which the
following paragraph is a part:
The ABM Treaty Interpretation Resolu-
tion, Report of the Committee on Foreign
Relations, United States Senate, S. Rep. No.
'The parties are the Department of the Navy and
some of its officials, Rainbow Navigation, Inc., the
International Organization of Masters, Mates &
Pilots (the Union), and Iceland Steamship Co., Ltd.
(Eimskip). Eimskip is before the Court for the first
time in the current phase of the litigation.
" The Department of Justice disavowed in court
the representations made by the Navy and the De-
partment of State to the Senate during tleaty rati-
fication proceedings as merely "precatory" and
"non-binding." Hearing on Rainbow's motion for a
temporary restraining order. April 15, 1988. This
position is disturbing since it undercuts the founda-
tion upon which Senate ratification was based, at
least in part. As Professor Henkin recently testi-
fied:
The President can only make a treaty that means
what the Senate understood the treaty to mean
when the Senate gave its consent. . . The Senate's
understanding of the treaty to which it consent is
binding on the President. He can make the treaty
only as so understood. He cannot make the treaty
and insist that it means something else . . . the
Constitution clearly implies that it is what the
Senate understands the treaty to mean?that is
what the treaty means for purposes of its consent.
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May 26', 1988 ? CONGRESSIONAL RECORD ? SENATE S 6757
164, 100th Cong., 1st Sess. 49 (1987). See also
Restatement (Second) Foreign Relations
Law of the United States (Revised), Tenta-
tive Draft No. 6 (1985), ? 314, comment d
and ? 314(2):
The. Administration must further assure
that the Treaty, if ratified, will be imple-
mented in such a fashion that the existing
United States-flag service in the Iceland
trade will not be disadvantaged. In other
words, the United States-flag presence and
the maritime employment will be main-
tained just as if the 1940 Act were fully in
effect in the Iceland trade."
Similarly, on the question as to how the
treaty would affect Rainbow, the only U.S.-
flag carrier on that route, Senator Mathias
asked and Mr. Derwinski replied: -
Senator MATHIAS. What about the current
American flag carrier? Are there any plans
in effect to save harmless the current cargo
carrier that is now carrying supplies to the
(U.S.) military base in Iceland?
DERWINSKI. My understanding is that the
current carrier has been involved in a
number of discussions with appropriate au-
thorities, and despite the fact that we could
not provide, obviously, within the treaty for
specific protection for an entity, we did have
in mind at all times the need to protect the
interests of the current carrier (emphasis
added)."
Relying in part upon these representa-
tions, the Senate Foreign Relations Com-
mittee recommended that the Senate ratify
the treaty. In fact, the Committee stated in
its report to the full Senate that advice and
consent were being conditioned upon three
assurances given by the Departments of
State and Defense, one of them being that
"the treaty will be implemented in such a
way that the existing United States-flag
service in the Iceland trade would not be
disadvantaged as a result of the Treaty. The
Committee received these assurances at its
hearing and recommends advice and consent
on that basis only.- 20
Two days after the Committee Report was
issued, and on the day the Treaty was rati-
fied, Senator Pell repeated this condition of
ratification on the Senate floor.2,
This history clearly shows that the Senate
was concerned about protecting the inter-
ests of the current American carrier; 22 that
to give meaning to that concern, it intended
the treaty to provide that protection with-
out further requirements; and that the Ex-
ecutive Branch agreed.
By even raising trie standing issue, the
Navy is adding to its pattern of false repre-
sentations discussed in part I, supra. Having
assured the Senate that the treaty would
not disadvantage the "existing United
States flag service . . . [and that] United
States presence and the maritime employ-
ment will be maintained" as under the
Cargo Preference Act, the Navy is now argu-
ing through its counsel that this assurance
is meaningless unless new implementing leg-
islation is first enacted. No mention appears
to have ever been made to the Senate or its
committee regarding implementing legisla-
tion or the need therefor, and the Adminis-
tration has never proposed such legislation.
The Court concludes that the Iceland
treaty is self-executing and that Rainbow
" United States-Icelandic Treaty on the Carriage
of Military Cargo: Hearings on the Treaty Before
the Comm. on Foreign Relations, 99th Cong., 2nd
Sess. p. 9 (1986).
"Id. at 11.
20 R. Rep. No. 27, supra, note 5.
132 Cong. Rec. 515661 (daily ed. October 8,
1986).
"As this discussion illustrates, Rainbow has
standing since it could hardly be more directly
within the "zone of interests" protected by the
treaty.
and the Union have standing to bring this
action.
As to the other threshold defenses ad-
vanced by the Navy, they either fall away
upon the determination that the treaty is
self-executing or they are otherwise un-
founded. The Navy protests that the Court
lacks subject matter jurisdiction over Rain-
bow's claims, but according to 28 U.S.C.
? 1331, "Ctlhe district courts shall have
original jurisdiction of all civil actions aris-
ing under. . . treaties of the United States."
See also U.S. Const. Art. VI Cl. 2. And it is
of course well established that the review
provision of the Administrative Procedure
Act, 5 U.S.C. ? 502, waives sovereign immu-
nity for injunction actions.23
IV
The Court now turns to the merits of
Rainbow's complaint and its request for a
preliminary injunction.24 Rainbow alleges
that the 1988 Navy procurement for the
United States-Iceland route is contrary to
the language and the purposes of the
memorandum of understanding. The Navy's
answer is that two competitions between
American and Icelandic shippers are permit-
ted by the treaty and MOU?one competi-
tion for 65% of the cargo, and a second com-
petition for 35% of the cargo. In the opinion
of the Court, that construction of the treaty
and the MOU is untenable.
The language of the MOU 25 is straight-
forward and unmistakable: 25
. Each competition shall result in con-
tract awards to both an Icelandic shipping
company and a United States flag carrier
such that not to exceed 65 percent of the
cargo shall be carried by the lowest bidder
and the remainder shall be carried by the
next lowest bidder of the other country . . .
(emphasis added).
Thus, according to the MOU, for any
given shipment period, there is to be a
single competition dealing with 100% of the
cargo. At each such competition,_ the Navy
See Warin v. Director, Department of Treasury,
672 F.2d 590, 591-92 (6th Cir. 1982); Neal v. Secre-
tary of Navy, 639 F.2d 1029, 1036-37 (3d Cir. 1981):
Jaffee V. U.S., 592 F.2d 712, 717-719 (3d Cir. 1979);
Beller v. Middendorf, 632 F.2d 788, 796-97, 799 (9th
Cir. 1980).
"To prevail on a motion for a preliminary in-
junction. Rainbow must show (1) that it has a sub-
stantial likelihood of prevailing on the merits; (2)
that it will be irreparably harmed if an injunction
is not granted; (3) that the interests of all affected
parties are properly balanced by the said relief; and
(4) that the public interest is clearly served by the
issuance of an injunction. See Washington Metro-
politan Area Transit Commission v. Holiday Tours,
Inc., 559 F.2&841 (D.C. Cir. 1977); Virginia Petrole-
um Jobbers Association v. Federal Power Commis-
sion, 259 F.2d 291 (D.C. Cir. 1958).
"An MOU is an international executive agree-
ment which must be interpreted according to the
principles applicable to treaties. Air Canada v. U.S.
Department Of Transportation, No. 87-1300, slip op.
at 6 (D.C. Cir. Apr. 15, 1988). The general rule in in-
terpreting treaties is:
The clear import of treaty language controls
unless "applicable of the words of the treaty ac-
cording to their obvious meaning effects a result in-
consistent with the intent or expectations of its sig-
natories.
Sumitomo Shoji American, Inc. V. Avagliano, 457
U.S. 176, 180(1982) quoting maximov v. United
States, 373 U.S. 49, 54 (1963).
"An international agreement is to be interpret-
ed in good faith in accordance with the ordinary
meaning to be given to its terms in their context
and in the light of its objects and purpose." Re-
statement of the Law (Second) Foreign Relations
Law of the United States (Revised), Tentative
Draft NO. 6 (1985), 325(1). This same rule of inter-
pretation is prescribed by the Vienna Convention of
the Law of Treaties Article 31(1). S. Exec. L. 92d
Cong., 1st Sess. (1971), 8 I.L.M. 679. As the State
Department has noted. "the Convention is already
recognized as the authoritative guide to current
treaty law and practice." Id.
awards up to 65% of the cargo to the lowest
bidder?a shipper from either country?and
the remainder, 35% of the cargo or more 27
to the next lowest bidder?a shipper from
the other country.
However, under the Navy's construction
of the MOU, and under the awards proce-
dure it contemplates, the "next lowest
bidder" will never receive any portion of the
contract. That result is achieved by having
two competitions rather than one: once the
lowest bidder fromn one country wins the
contract for 65% of the cargo, instead of the
remainder going to the next lowest bidder, a
second competition is held for that remain-
der at which, again, the lowest bidder pre-
vails. With respect to neither competition
will the "next lowest bidder" even be consid-
ered; it -would have to be the lowest bidder
in the second competition to receive any
portion of the contract.28 The language in
the MOU referring to the "next lowest
bidder" is simply disregarded and given no
effect.
The language of the MOU?which the
Court finds to be unambiguous in its sup-
port of Rainbow's position?is further but-
tressed by the construction placed thereon
by the Secretary of Defense himself. Secre-
tary Carlucci wrote as follows on March 25,
1988 to Senator Lugar of Indiana, a member
of the Committee on Foreign Relations: 29
The treaty and implementing memoran-
dum of understanding foster competition
between U.S. and Icelandic flag carriers for
100 percent of the cargo transported by sea
between Iceland and the United States for
purposes of the 1951 Defense Agreement be-
tween the two countries. The overall low
bidder is awarded 65 percent of the cargo
and the low bidder of the other country is
awarded the remaining 35 percent. This is
how the existing contracts were awarded.
Thus, the Secretary concluded that the
MOU requires a single competition in which
the contestants bid for 100% of the cargo,
and that the "overall low bidder" wins a
contract to carry 135% of the cargo, while
the "remaining 35 percent" goes to the low
bidder from the other country?precisely as
Rainbow asserts. Any still remaining doubt
Is allayed by the Secretary's reference to a
continuation of the method by which the
existing contracts were awarded. Those
(1987) contracts were, of course, awarded
precisely on the basis of the interpretation
of the MOU urged upon the Court by Rain-
bow.
V
Rainbow and its seamen have an extreme-
ly strong likelihood of success on the merits.
These parties also stand to be irreparably
harmed if the procurement is not enjoined.
As concerns Rainbow, its business would in
all likelihood have to be shut down; as re-
gards the Union, its members employed by
Rainbow will lose their jobs. Indeed, the
Court is persuaded, on the basis of the evi-
dence before it, that Rainbow cannot secure
alternate shipping business and that, in
view of the depressed nature of the Ameri-
can merchant marine, its seamen are unlike-
ly to find new employment.
By issuing a preliminary injunction, the
Court preserves the status quo between the
parties.88 And, in view of the existence of
"More than 35% Of the cargo will be so awarded
if the lowest bidder takes less than 85%.
"Rainbow claims that, for a variety of reasons, it
will not be ,able to compete effectively under the
Navy's two competition system, and the Court is
persuaded on the basis of the evidence available at
this juncture, that this representation is correct.
"Secretary Carlucci's letter was attached to the
Union's motion for preliminary injunction.
"Rainbow will continue to carry its share of the
cargo under the 1987 procurement, and so will
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S -6758, CONGRESSIONAL-RECORD ? SENATE May 26, 1.988
present arrangements, there will be no
interruption of the delivery of the cargo and
thus no injury to the public interest or to
the defendants.
VI
As indicated, the recent events connected
with implementation of the treaty represent
the third time that the Navy has attempted
to eliminate Rainbow, a small American-flag
shipper, from the Icelandic trade. In 1985,
the Navy announced and assured the Court
that Rainbow had to be disqualified from a
cargo preference because its rates were ex-
cessive. Upon examination, it was found
that this was untrue and that the real
reason for the attempted disqualification
was the Department of State's plan to
permit Icelandic shippers to regain their
monopoly with respect to that trade. In
1986, the Navy assured the Court that Rain-
bow's services could be dispensed with be-
cause military aircraft which were flying by
way of Iceland anyway could perform Rain-
bow's role. Upon inquiry, it became appar-
ent that, contrary to the Navy's assurances
and contrary to binding regulations, mili-
tary aircraft were capable of taking on that
role only if they were diverted from their
normal duties.
Now the Navy is attempting to eliminate
Rainbow once again, this time under the
treaty with Iceland. The present effort is as
disingenuous as the other two. The con-
struction of the memorandum of under-
standing adopted by the Navy is contrary to
the ordinary meaning of the language con-
tained in that document. It is contrary also
to the assurances given by Mr. Derwinski
and Rear Admiral Piotti, .1h, to the Senate
Committee on Foreign Relations when the
treaty was before the committee for ratifi-
cation. And it is contrary, finally, to an in-
terpretation of the treaty announced lust
two months ago by Secretary of Defense
Carlucci himself.
The Court understands that Iceland is a
staunch ally of the United States, and it
sympathizes with the efforts of our govern-
ment to satisfy the demands of that nation.
But this may not be done at the expense of
one of the few remaining American-flag ves-
sels of our merchant marine and the few re-
maining American seamen who have found
employment there. More particularly, this
may not be done in violation of American
law, of the language and purpose of a
treaty, and of the solemn representations
made to the United States Senate in connec-
tion with the ratification of that treaty.
The Court has accordingly, once again, en-
joined the Navy's attempt to put Rainbow
out of business.
May 17, 1988.
HAROLD H. GREENE,
U.S. District Judge.
The PRESIDING OFFICER. Who
yields time?
Mr. WILSON addressed the Chair.
The PRESIDING OFFICER. The
Senator from California.
Mr. WILSON. Mr. President, once
again, before the Senator from South
Carolina takes to his feet, I wonder if
he would object to the Senator from
Texas taking 3 minutes.
Mr. HOLLINGS. Go right ahead.
Mr. WILSON. Mr. President, I yield
3 minutes to the Senator from Texas.
Eimskip, the Icelandic carrier. The Court takes no
position on the issue of how Eimskip should be paid
for transporting its 65% of the cargo during the
period of this injunction. That is a matter for reso-
lution between the Navy and Eimskip.
The PRESIDING OFFICER. The
Senator from Texas.
Mr. GRAMM. Mr. President, maybe
I can give a little of that time back. I
know people get confused during all
this debate with all these fancy terms,
but I just want to convert it into Eng-
lish. The real debate is this. You can
put it in an analogy. A fellow goes out
and he goes down to the Back Street
Motors and he buys a used car, and he
has a contract and he comes back and
he wants his wife to be happy with the
car and the contract so he tells her
what is in the contract. And if he is
lucky, she smiles and kisses him and
says that was a really good deal. Now,
incidentally, there is a dispute about
this contract and they go into court,
and the fellow who bought the car
says, "You ought to look at thq con-
tract and you ought to look at what I
told my wife. That is what I ought to
be bound with, what I told Sara."
Now, the fellow who sold the car
says, "Now, wait a minute; I never
even met Sara. I want you to look at
the contract we signed, and I want you
to look at what we each said when we
signed it."
If you believe what this fellow told
his wife, that was the contract in
buying this used car which ought to be
binding, then you want to vote for this
amendment. On the other hand, if you
think you have a more accurate pic-
ture by looking at what the fellow said
when he was talking to the used car
dealer then you are going from what
he said to his wife, you want to vote
no on this amendment. That is about
as clear as it can be clear.
Mr. SARBANES. Mr. President, will
the Senator yield for a question on my
time?
Mr. GRAMM. I would be happy to
yield for a question.
Mr. SARBANES. Does that fellow
who bought the car need the consent
of his wife in the example the Senator
is postulating does he have to have his
wife's consent to buy the car?
Mr. GRAMM. It was a joint bank ac-
count in my example. I did not make
that clear. Yes. He did. I think the
fact that he has to have his wife's con-
sent tells one why one needs to espe-
cially go back and look at what he said
with the used car dealer, because he
has to have her consent to sign the
check. He is likely to make it look like
as good a deal as he possibly can make
it look.
So the Senator simply made my
point.
I yield back the balance of my time.
The PRESIDING 0101,ICER. Who
yields time?
Mr. WILSON and Mr. HOLLINGS
addressed the Chair.
The PRESIDING OFFICER. The
Senator from California.
Mr. WILSON. If there are no objec-
tions, I think it would be appropriate,
if the majority leader agrees, that the
Senator from South Carolina take his
20 minutes with the understanding
under the majority leader's unani-
mous-consent request that that be
charged to neither side.
The PRESIDING OFFICER. The
Senator from South Carolina is recog-
nized on his own time for 20 minutes.
Mr. HOLLINGS. Mr. President, let
me thank our distinguished majority
leader for protecting our rights and
providing me this opportunity. He has
been very considerate, as always, and
he has been very sincere in trying to
bring order out of this chaotic non-
sense that we have worked ourselves
Into. I use that word "nonsense" ad-
visedly. ?
My friend and desk mate, Senator
BIDEN, is not here. He and I have had
discussions, and I know he was very
well intentioned in presenting this
amendment. It is unfortunate that he
cannot be here. The Senator from
West Virginia, in his opening com-
ments, observed that the whole idea
with this amendment is to strengthen
the role of the U.S. Senate in the in-
terpretation of treaties, and the need
for that strengthening arose as a
result of the ABM dispute.
I want to make the record absolutely
clear by pointing out, in a tactful and
dignified fashion, that this particular
dispute has been conceived and
framed in error. I and several others
here today were Members of that U.S.
Senate that advised and consented on
the ABM Treaty in 1972. Previous to
ratification of that treaty, I had the
opportunity, with then-majority
leader Mike Mansfield, to visit in what
we called the "tent" in Helsinki where
our distinguished President met with
those who negotiated the ABM
Treaty. Senator NUNN, the Senator
from Georgia, has framed this "rein-
terpretation" dispute, asserting that
President Reagan tried to reinterpret
the ABM Treaty. I was taken aback by
Senator Numq's presentation. I knew
differently. I did not have time in the
spring of 1987 to immediately respond
to him. But, later in the year, I did
have the opportunity to rebut Senator
Numi here on the floor of the Senate,
in a lengthy Washington Post op-ed
column, and before the Foreign Rela-
tions Committee.
I want to reiterate, today, that the
ABM Treaty is best understood
through the testimony of those who
negotiated it. And those negotiators
speak very unambiguously and au-
thoritatively.
My time is limited, but I would like
to cite several statements by the ABM
Treaty principals. Gerard C. Smith,
who was our chief ABM Treaty negoti-
ator, testifying a response to a ques-
tion on future ABM systems, practical-
ly, restated Agreed Statement D when
he said:
One of the agreed understandings says
that if ABM technology is created based on
different physical principles. . . . work is
(sic) that direction, development work, re-
search, is not prohibited, but deployment of
systems using those new principles . . .
would not be permitted unless both parties
agree by amending the treaty.
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CONGRESSIONAL RECORD ? SENATE S 6759
In later testimony before the House,
he stated that:
If such systems are developed, and one or
the other side wants to deploy them under
the limitation of this Treaty, there would
have to first be a discussion of the question
In the Standing Consultative Commission
we are proposing to establish under the
Treaty, and then the Treaty would have to
be amended before such novel ABM system
would be deployed.
When Senator Barry Goldwater
asked Negotiator Smith:
Under this agreement are we and the So-
viets precluded from the development of the
laser as an ABM?, Mr. Smith: "No, sir."
On June 19th, appearing with Secre-
tary of State Rogers before the Senate
Foreign Relations Committee, Ambas-
sador Smith, Director of ACDA, re-
sponded to the question by Senator
Aiken as follows:
Mr. Smith: Senator Aiken. I think it is an
entirely different problem with respect to
the one of lasers to help guide offensive mis-
siles and from their use to guide defensive
missiles, but we have covered this concern
of yours in this treaty by prohibiting the de-
ployment of future type technology. Unless
the treaty is amended, both sides can only
deploy launchers and interceptors and
radars. There are no inhibitions on modern-
izing this type of technology except that it
cannot be deployed in mobile land-based or
space-based or sea-based configurations. But
the laser concern was considered and both
sides have agreed that they will not deploy
future type ABM technology unless the
treaty is amended.
In his book, "Double Talk," Gerard
Smith stated that the ABM Treaty:
Should keep future generations of ABMs
that American and Soviet weaponeers may
conceive of in the infancy of research and
development." (page 455).
I also met Lt. -Gen. Royal Allison in
that "tent" in Helsinki. Regarding
future AMB systems, General Allison
stated on June 21, 1972, and I quote:
(a) Constraints in the Treaty apply to de-
ployment only. Research and development
are not constrained.
(b) The U.S. Delegation, under instruc-
tions, sought a clear-cut ban on deployment
of future ABM systems but the Soviets
would not agree. Hence the finally agreed
and initialled interpretative statement:
[quoting Agreed Statement D].
(c) Article III spells out the ABM defenses
which can be deployed?one site for NC and
one site for ICBM defense?utilizing compo-
nents described in Article III (ABM inter-
ceptor missiles; ABM launchers and ABM
radars). . . .
The upshot is that to be accurate we muat
avoid the connotation of an absolute "ban"
In discussing future ABM systems. We
should say that there is an obligation not to
deploy such systems without taking certain
specified and agreed steps; i.e., in the event
such systems are created in the future, spe-
cific limitations on them would be subject to
discussion and agreement.
In September, 1977, then-Secretary
of Defense Harold Brown, a negotia-
tor, purportedly stated in the course
of the 5-year periodic review of the
treaty that the Soviet Union did not
believe the treaty precluded the devel-
opment and testing of future ABM
systems, and that the Chairman of the
Joint Chiefs of Staff also believed the
treaty placed no limitations on devel-
orment and testing of ABM systems
based on other physical principles.
Former negotiator Paul Nitze ana-
lyzed the treaty and in testimony
before the Senate Appropriations
Committee on March 19, 1987 stated:
"In sum, my recollection of the negoti-
ating process leaves me convinced that
the Soviets agreed in a binding
manner to prohibit only the deploy-
ment, not the creation, that is, the de-
velopment and testing, of systems
based on other physical principles and
their components capable of substitut-
ing for conventional components as
defined in Article II, regardless of
basing mode."
Henry Kissinger, former Secretary
of State and National Security Adviser
at the time the treaty VMS negotiated,
has also affirmed, "I personally be-
lieve the broad interpretation of the
Anti-Ballistic Missile Treaty to be
more nearly correct than the narrow
interpretation.
General Bruce L. Palmer, Jr., is
often misinterpreted or misquoted by
those favoring the narrow interpreta-
tion. Let me set the record straight.
General Palmer in testimony before
the Senate Armed Services Committee
on July 19, 1972, stated, "My under-
standing is in the defensive area, R&D
on such systems is basically prohibit-
ed." Realizing he had made a mistake,
he later stated, "I would like to correct
my statement. I was referring to the
deployment of such systems. There is
no limit on R&D in the futuristic sys-
tems, but would require an amend-
ment of the treaty or further agree-
ment to deploy such a system"
Incidentally, Mr. President, I have
not found a Senator yet from 1972 to
say he was mislead. Find me one and I
will jump off the Capitol dome. But I
want to emphasize this point. Not a
single Senator who participated in the
1972 debate has come before us and
said, "Oh, heavens, I was mislead. Now
they are claiming a different treaty
than the one I voted for."
Mr. President, I continue by citing
Adm. Thomas Moorer. The theme of
the - "broad" interpretation is em-
'bodied in both the fiscal years 1974
and 1975 "Posture Statements" by
then-Chairman of the Joint Chiefs of
Staff, Adm. Thomas Moorer. The pa-
rameters established by our own mili-
tary after ratification of the ABM
Treaty were consistent with the broad
Interpretation espoused by President
Reagan. In his "Military Posture for
Fiscal Year 1974," the JCS Chairman
wrote:
As a hedge against the emergence of new
threats which could gravely jeopardize our
national safety, we plan to continue ... new
technological approaches to even more ad-
vanced ABM systems. The strategic situa-
tion is still fraught with many uncertainties.
It is only prudent, therefore, that we contin-
ue our efforts to advance our ABM technol-
ogy to the full extent permitted by the
Treaty. This is the kind of action the Joint
Chiefs of Staff had in mind with regard to
the third of the "three assurances" I pre-
sented to this Committee last summer in
connection with the Hearings on the SAL
Agreements; namely, full support of a "vig-
orous research and development program."
In the fiscal year 1975, "Posture
Statement," the chairman repeated
the general thrust of the 1974 state-
ment, but added:
. . . and retain the option to deploy a
more advanced ABM system for the defense
Of the National Command Authority or to
deploy a more extensive system should the
ABM Treaty be abrogated for any reason.
The letter of transmittal accompa-
nying the treaty from Secretary of
State Rogers stated unequivocally
that:
Development, testing, and development of
ABM systems or ABM components that are
sea-based, air-based, space-based or mobile
land-based are prohibited; deployment (and
not research and testing) of ABM systems
involving new types of basic components to
perform thecurrent functions of ABM
launchers, interceptors, or radars is prohib-
ited ? ? s.
Senator Fulbright stated, "the
treaty permits modernization and re-
placement within the present technol-
ogy but does not permit the deploy-
ment of a system or component capa-
ble of substituting for ABM intercep-
tor missiles, launchers, or radars.
Senator Fong stated on page 29707
of the RECORD: The principal provi-
sions of the ABM Treaty may be sum-
marized as follows:
? ? ? Fourth, Allows research and devel-
opment on ABM systems to continue, but
not the deployment of exotic or so-called
future systems.
The 6-hour debate on the ABM
Treaty resolution of ratification in
August 1972 hardly refers to the issue
at hand. Rather, the debate was on
the pending SALT I Treaty ratifica-
tion and the pending Jackson amend-
ment to that treaty. There was no
question that the Senate, in the ratifi-
cation of SALT I and the Jackson
amendment within the same month of
1972, had clearly in mind research and
development. For the Jackson amend-
ment provided: ". . . the Congress con-
siders that the success of these agree-
ments and the attainment of more
permanent and comprehensive agree-
ments are dependent upon the mainte-
nance of a vigorous research and de-
velopment and modernization program
leading to a prudent strategic pos-
ture."
Any question about the right of the
United States to research, test and de-
velop and the Congressional intent in
the ratification of the ABM Treaty be-
comes categorically clear by the same
Congress providing in its appropria-
tion for research, testing and develop-
ment of futuristic systems as follows:
Fiscal year 1973
Million
Army, Laser Technology Program
$11.9
Navy, high energy laser
18.2
Air Force, strategic laser technology.
1.3
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S 6760 CONGRESSIONAL RECORD ? SENATE
Million
DARPA, Short-wave laser technolo-
gy 20.0
Total fiscal year 1973 appro-
priation
Fiscal year 19 74
Army, laser technology
Navy, high energy laser
Air Force, strategic laser technology
DARPA, 'short-wave laser technolo-
gy
51.4
Million
$11.7
19.5
3.0
17.0
Total fiscal year 1974 appro-
priation 51.2
Garthoff claims that the Soviets
agreed to ban deployment of futuristic
ABM technologies on September 15,
1971. Yet a cursory review of the nego-
tiating record reveals at least 22 in-
stances between late September and
February 1 where negotiators focused
on the Soviets's steadfast rejection of
United States proposals to outlaw fu-
turistic ABM systems.
The. impasse on this issue was re-
solved December 20 when Garthoff
and his Soviet counterpart agreed to
defer the issue of futuristic systems to
a separate addendum to the treaty.
That addendum, Agreed Statement D,
communicates very clearly that future
ABM systems based on other physical
principles are permitted. As Soviet ne-
gotiator V.P. Karpov wrote in the May
29, 1987 lzvestia on the occasion of the
treaty's 15th anniversary,
It would (have been) premature to make
new systems subject to the same limitations
as existing ones. At the same time, we be-
lieved it necessary to supplement the treaty
with a provision introducing additional limi-
tations on the DEPLOYMENT of ABM sys-
tems or their components which would be
created on the basis of new technologies.
Agreed Statement D introduced them.
Article II, paragraph 1 of the ABM
Treaty states that, "For the purposes
of this treaty an ABM system is a
system . . . currently consisting
of . . ." Paragraph 2 further specifies
that the five types of systems covered
by this definition are those that are
"Ca) operational, (b) under construc-
tion, (c) underground testing, (d) un-
dergoing overhaul, repair or conver-
sion, and (e) mothballed." All of these
are manifestly "current" in nature.
Nowhere in article II is there mention
of "future" systems. Everywhere in
the negotiating record and in state-
ments by the negotiators, future sys-
tems were to be dealt with elsewhere
than in article II; and thus Agreed
Statement D was included to govern
future systems. The restrictions in ar-
ticle V. paragraph 1, apply only to the
development, testing, and deployment
of ABM systems described in article II
as "current".
Common sense says that the phrase
"currently consisting of" in paragraph
1 is a limiting phrase designed to ex-
clude systems invented in the future.
Yet Garthoff insists the opposite: that
"current" encompasses "future." In a
leap of faith and language, Garthoff
asserts that "currently consisting of"
was written into the text in order not
to exclude future systems. If, as
Garthoff claims, the research, testing,
and development of "future" as well as
"current" systems are governed by the
main body of the treaty, then Agreed
Statement D?whose sole thrust is to
spell out the treatment of "future"
systems?would be superfluous.
In brief, the Soviet stance against
banning futuristic systems prevailed.
Under Agreed Statement D, "cre-
ation"?research and testing?of futur-
istic ABM systems is permitted.
Mr. President, we, as Senators, can
dance around the fire all we want, but
we are not going to change the ele-
mentary principles of contract law.
I understand that we ought to be
able to depend on the executive
branch when it makes its representa-
tions, and I think we can. Likewise, I
think they can depend on the Senate,
and we should not get bogged down in
this intramural dispute over what con-
stitutes a "common understanding"
and what does this mean. We have,
here, a bunch of nonlawyers trying to
make contract law that is not binding
whatsoever in the treaty; and, inciden-
daily, it cannot bind the executive
branch.
Under the Constitution, we bind the
executive branch by three readings in
the House and three readings in the
Senate and law signed by the Presi-
dent, or an overriden veto. There is no
constitutional provision for treaties
between the President and the U.S.
Senate. There is only a constitutional
provision for the Senate to advise and
consent with respect to ratification.
Read the Foreign Relations Commit-
tee report. The parties who have been
engaged in this exercise are trying to
get away from the negotiating record
because they are distracted and dis-
torted by the so-called Sofaer doctrine
and his comments about treaty inter-
pretations being transitory. I am not
here either to defend or criticize
Sofaer or anyone else. The fact is that
he indulged in an unfortunate exercise
at that time, and we have been dis-
tracted ever since.
Any contract lawyer will say: "Sena-
tor, I will take you into court. You are
bound by the words and language of
that treaty."
If there is an ambiguity, we then go
first to the negotiating record. Other-
wise, there is the parole evidence rule.
You cannot say what you "thought"
the contract meant. The judge will not
allow such testimony.
Mr. President, we can pass this
amendment, and, likewise, the Presi-
dent can ignore it. Presidents have ig-
nored our unconstitutional actions in
the past. We had three readings in the
House and three readings in the
Senate and overrode his veto of the
war powers resolution, and it has been
Ignored by the executive branch ever
since.
So let us not get exercised about
words, and let us not indulge in allega-
tions that there was a reinterpretation
of the ABM Treaty. I am willing to
May 26, 1988
debate this matter at any time, any-
where.
I have talked to the best of lawyers
and the best of minds, and they all
agree that R&D on strategic defense is
permitted. Nonetheless, we have been
derailed politically by pressure from
the other body not to get into certain
advanced technologies. We cannot
even get conventional cruise missies
through this Congress. We cannot get
an ASAT system; we cannot test.
We are not doing our duties around
here, and it disturbs me, but let us not
ignore the Constitution this after-
noon, in a misguided effort to reaffirm
our constitutional authority. We do
protest too much. No Senate condition
or action is going to embellish or en-
hance, and no Senate action is going
to take away from that constitutional
authority which is tmdisputably ours.
We are trying to give legal aura and
precedent to political shenanigans.
There is a meeting of the minds be-
tween the two parties to the treaty,
and now we are coming in with a sepa-
rate treaty, a meeting of the minds be-
tween the President and the Senate,
and that approach is not going to fly.
That is what the root issue is here.
Opponents of SDI are attempting to
seize the high ground on the treaty
itself, because it is easier to argue that
they are constitutional and law-abid-
ing than it is to argue against R&D on
a particular advanced technology.
I am for defense, but I am prohibit-
ed from defending this Nation. That is
what is involved in this particualr ex-
ercise. We all know it, and it is unfor-
tunate that we got into this situation.
I am glad to present what Mr.
Garthoff said, because he said that
there was a meeting of the Soviet and
American minds on September 15,
1971. It was all agreed to. But I then
went back to the record, and I picked
out 22 instances thereafter where it is
clear that there was no such agree-
ment.
I ask unanimous consent that this
material be printed in the RECORD.
There being no objection, the mate-
rial was orderd to be printed in the
RECORD, as follows:
?
SOVIET REJECTIONS OF LiMITATIONS ON FU-
TURISTIC ABM SYSTEMS SUBSEQUENT TO
SEPT. 15, 1971
1, September 17, 1971. Smith: ? ? ? had
the feeling that the Soviet position on Arti-
cle 2 reflected a desire that nothing be done
to prejudice the Soviet position on the issue
treated in paragraph 1 of Article 6.
Semenov: ? ? * bearing in mind that inclu-
sion of uncertainties in an agreement would
surely lead to all sorts of misunderstandings
in the future. ? ? ? with reference to the
U.S. position on Article VI ? ? he would
not care to say any more. ? ? ? this problem
would be kept in his field of vision. ? ? ? for
the next Vienna phase.
2. September. 20, 1971. Garthoff: stated
there would remain seven points of differ-
ence including a provision to cover future
"unconventional" ABM systems. ? ? ?
3. November 30, 1971. Shchukin: ? ? ? the
Soviet side cannot recognize as well-founded
the proposal of the U.S. involving an obliga-
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May 26, 1988
tion not to deploy ABM systems using de-
vices other than missiles, launchers, radars.
The subject of a Treaty (Agreement) could
only be a specific and concrete limitation of
ABM systems. ? ? ?
4. December 7, 1971. Garthoff: On Article
V. both sides reiterated the strong positions
which they hold on the question of the
paragraph relating to future systems. ? ? ?
Kishilov and Grinevsky flatly asserted that
they were certain there would be no change
in the position on the Soviet side.
5. December 10, 1971. Brown: The Soviet
side has objected to limits on possible future
ABM systems on the basis that such sys-
tems are defined only in general terms.
6. December 14, 1971. Nitze: noted in con-
nection with Shchukin's comments ? ? ? on
future systems he had emphasized the inap-
propriateness of this subject for treaty lan-
guage. ? ? ?
7. December 14, 1971. Semenov: Although
Dr. Brown said that the question of future
ABM systems, which do not include launch-
ers, radars, and interceptors. *8 ? I would
like to ask what this is all about in concrete
terms. In what does the U.S. side see a
danger in the absence of a provision on this
account in the treaty? If these systems
cannot be defined now, except that they are
not something known today, and, at the
same time, the draft treaty includes a
number of clear limitations and constraints
not to deploy territorial ABM systems, not
to give the capability for rapid reload, etc.,
is it not sufficient to have such limitations?
To be sure, including in the treaty a provi-
sion covering something that is not known
cannot be justified by any considerations,
and therefore this proposition cannot be the
subject of a treaty.
8. December 17, 1971. Garthoff: On future
ABM systems, I suggested to Kishilov the
possibility of a new approach to meeting the
issue. Perhaps it would be possible to have a
clear and explicit,imderstanding, for exam-
ple, in an agreed minute, that neither side
would deploy a future ABM system or com-
ponents without prior consultation and
mutual agreement in the Standing Consult-
ative Commission.
9. December 17, 1971. Garthoff: Grinevsky
referred to the conversation I had had that
morning with Kishilov concerning a possible
alternative approach to handling future
ABM systems. *a a handling these matters
through the Standing Consultative Commis-
sion, rather than through explicit treaty
provisions, offered a possible resolution to
our differences.
10. December 20, 1971. Semenov: ? ? a sup-
pose that the draft treaty had a provision
on limiting systems other than those now
known which use interceptors and launch-
ers such a provision would create the
grounds for endless arguments, uncertain-
ties. He asked if the goal of the two Delega-
tions isn't just the opposite, that is to reach
agreement on limiting known ABM systems,
certainly such limitations on known ABM
systems constitute a factor for relaxing
international tension and curbing the race
in strategic arms and limiting them. How
then could an ABM treaty include a provi-
sion about whose content the sides do not
have the vaguest notion? Could the sides in-
clude in an ABM treaty the unknown with-
out risk of making the treaty indefinite and
amorphous? The sides cannot and must not
engage in discussion of questions not known
to anyone. The task faced by the two sides
Is to erect reliable barriers against deploy-
ment of known ABM components in excess
of the levels defined by the ABM treaty. If
It should appear necessary to supplement
the ABM treaty by a provision prohibiting
or limiting other ABM components in addi-
tion to those now known, this can be done
CONGRESSIONAL RECORD - SENATE S 6761
in accordance with the procedures provided
for in the provision on review.
11. December 20, 1971. Grinevsky: raised
the question of dealing with future ABM
systems through statements on the record.
? ? ?
Garthoff: noted that the suggestion he
had advanced in this respect was for an
agreed minute; there must be a clear agreed
mutual understanding that, prior to any de-
ployment of future systems there would be
consultation and agreement in the Standing
Consultative Commission.
12. December 21: 1971. Grinevsky: asked if
the American side had proposed language
for the suggested separate agreed under-
standing on future ABM systems.
Garthoff: said he could provide an illus-
trative draft statement as a possible solu-
tion to the impasse over the American pro-
posal for a third paragraph in Article V.
The Soviet Delegation has said on several
occasions that it is opposed to the proposal
by the United States to include a provision
in the ABM agreement prohibiting ABM
'systems in the future which would use de-
vices other than ABM interceptor missiles,
ABM launchers, or ABM radars to perform
the functions of those components. In order
to contribute to negotiating progress, while
maintaining our basic position on this
matter, the U.S. side is willing to drop Arti-
cle V(3) if there is clear agreed understand-
ing as part of the negotiating record. An
Agreed Minute could read as follows:
The Parties agree that the deployment
limitations undertaken in Article I and Arti-
cle III are not to be circumvented by deploy-
ment of components other than ABM inter-
ceptor missiles, ABM launchers, or ABM
radars for countering strategic ballistic
mis.sles in flight trajectory. They agree that
if such components are developed and the
question of deployment arises, neither side
will initiate such deployment without prior
consultation and agreement in the Standing
Consultative Commission.
13. January 11, 1972. Slichukin: The
Soviet side continues to believe that only
quite specific ABM system components of
which each side had a clear idea could be in-
cluded in an ABM treaty ... For this reason
the Soviet delegation continues to consider
this point "not suitable" for inclusion in the
draft ABM treaty we were negotiating.
Nitze: said he had understood from
Shchukin's remarks that he believed that if
ABM components other than radars, inter-
ceptors and launchers were developed, they
could appropriately be the subject of con-
sultations under Article XIII. However, if
such components were developed and could,
in fact, be deployed in a manner to circum-
vent the specific limitations of Article III of
the treaty, would it not be appropriate that
they also be subject to agreement between
our Governments?
14. January II, 1972. Grinevsky: said that
the treaty referred to ABM systems which
were defined in Article II. It could not deal
with unknown other systems.
Garthoff: challenged this interpretation
on two grounds: first, the treaty dealt not
only with ARM systems compromising com-
ponents identified in Article II, but all ABM
systems; second, the issue did not concern
"other" systems but rather future ABM sys-
tems. However, what Garthoff was referring
to-and what the U.S. was particularly con-
cerned about-was precisely ABM systems
and components of some new kind in the
future. Garthoff repeated his reference to
laser ABM interceptors as an example.. . .
15. January 14, 1972. Trusov: affirmed the
Soviet position that it is premature to dis-
cuss limiting systems which are now non-
existent, and that if and when such systems
appear then limitation would be subject to
discussion under the provisions of Articles
XIII and XIV of the Draft ABM Treaty.
16. January 14, 1972. Shchukin: said he
had a very brief comment to make. At the
January 11 meeting, Mr. Nitze had asked
the question whether so-called "other ABM
means" would be a subject not only for ap-
propriate consultation but also for agree-
ment. Both sides agree that they should
assume obligations not to deploy ABM sys-
tems excepts aa provided in Article III of
the draft ABM Treaty. In order to insure
Implementation of this provision of the
Treaty, the sides could, in the event of the
emergence of ABM systems constructed on
the basis of other physical principles, fur-
ther discuss the question of their limitation
in accordance with Articles XIII and XIV of
the draft ABM Treaty.
17. January 14, 1972. Grinevsky: produced
a Soviet draft, based closely upon (but not
Identical with) the statement made in the
meeting that morning by Academician
Shchukin. The statement react
"With a view to ensuring the implementa-
tion of the provisions contained in Articles I
and III of the Treaty on the limitation of
ABM systems, the Parties agree that in the
event of the emergence of ABM systems
based on other principles questions of their
limitation may be discussed further in ac-
cordance with Articles XIII and XIV" of the
ABM Treaty."
18. January 26, 1972. Grinevsky: in re-
sponse to the latest proposed U.S. language
on the Agreed Interpretive Statement on
future ABM systems strongly urged that
the American side not pursue this proposed
addition, i.e., a clause reading to perform
the functions of ABM interceptor missiles,
ABM launchers, or ABM radars. He also
commented that his side had now accepted
the earlier American formulation complete-
ly, and in fact had accepted the American
position on the subject entirely, save only
that it would be a jointly agreed interpreta-
tion rather than a paragraph in the treaty.
DRAFT INTERPRETIVE STATEMENT OF FUTURE
ABM SYSTEMS
In order to insure fulfillment of the obli-
gation not to deploy ABM system compo-
nents except as provided in Article III of
the Treaty, it is agreed that in the event
ABM system components other than ABM
interceptor missiles, ABM launchers, or
ABM radars are created in the future, spe-
cific limitations on such system components
would be subject to discussion in accordance
with Article XIII and agreement in accord-
ance with Article XIV of the Treaty.
19. January 31, 1972. Garthoft I suggested
that perhaps we need a fresh approach, first
survey the problem and see if we agreed on
the substance of the matter-which I be-
lieved we did-and then find appropriate
language to express this agreed position.
Grinevsky saw that I was speaking from
prepared notes and seemed interested. I
thereupon gave him a copy ... after reading
the talking points, Grinevsky said that he
believed there was complete agreement.
Garthoff talking points:
It is understood that both sides agree
that
1. ABM systems and their components, as
defined in Article II, should not be deployed
except as provided for in Article III. ?
2. The deployment of ABM. system compo-
nents other than ABM interceptor missiles,
launchers, or radars to perform the func-
tions of those components is banned.
3. Devices other than ABM interceptor
missiles, ABM launchers, or ABM radars
could be used as adjuncts to an ABM system
provided that the devices could not perform
the functions of and substitute for ABM in-
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S 6762 CONGRESSIONAL RECORD ? SENATE May 26, 1988
terceptor missiles, ABM launchers, or ABM
radars. For example, a telescope could be
deployed as an adjunct to an ABM system,
whereas a laser for performing the function
of an interceptor missile by rendering inef-
fective a strategic ballistic missile flight
trajectory could not be deployed.
4. Article III should be drafted so as not to
permit the deployment of devices other
than ABM interceptor missiles, ABM
launchers, or ABM radars to substitute for
and perform their functions.
5. If such devices are created in the
future, their deployment could be provided
for by limitations subject to discussion in ac-
cordance with Article XIII and agreement
in accordance with Article XIV.
20. February 1, 1972. Allison: I observed
that both sides have had a clear understand-
ing for some time that within the context of
our negotiations when we speak of an ABM
system we are referring to a system made up
of three components?ABM launchers, ABM
interceptor missiles, and ABM radars. We
also appear to agree that substituting a dif-
ferent component for one of these three in
the future would result in a "future" or
"other" ABM system. It seems that our Del-
egations should be able to agree on a set of
words for the interpretive statement.
21. February 1, 1972. Nitze: It seemed to
me to be most likely that if something new
were to become possible in the future, that
this would be of such a nature as to substi-
tute for either launchers or interceptors or
radars, but not for all three.
Shchukin: said that if a new system were
developed which could substitute either for
radars or for interceptor/launchers, this
would be a new system and, as such, subject
to Articles XIII and XIV.
22. February 1, 1972. Garthoff: Grinevsky
called to say that he believed his Delegation
could accept the proposal if the words
"based on other physical principles and"
were included before the phrase "including
components."
AGREED STATEMENT D TO THE TREATY
In order to insure fulfillment of the obli-
gation not to deploy ABM systems and their
components except as provided in Article III
of the Treaty, the Parties agree that in the
event ABM systems based on other physical
principles and including components capa-
ble of substituting for ABM interceptor mis-
siles, ABM launchers, or ABM radars are
created in the future, specific limitations on
such systems and their components would
be subject to discussion in accordance with
Article XIII and agreement in accordance
with Article XIV of the Treaty.
Mr. HOLLINGS. Mr. President, I
regret that this afternoon we have
become embroiled in this dispute, be-
cause it does not reflect well on the
U.S. Senate, as a mature, deliberation
body, when what we are doing is play-
ing "catch the President." I prefer to
catch Gorbachev. I want to bind him
in a treaty. If we can get a treaty, let
us advise and consent to it; if the
Senate disagrees with that agreement
made by President Reagan and Secre-
tary Gorbachev, then let us put a
reservation in. But do not embarrass
us by saying: "Here is a condition?
and, by the way, don't bother telling
the Soviets, because we are just impos-
ing a constitutional binder on our own
executive." No Congress is going to
bind a future Congress. We have to
work together and trust each other.
There has been a misunderstanding
regarding the ABM treaty. But you
cannot enact a law that will prevent
any other misunderstanding in the
future.
The bottom line is that supporters
of the Byrd amendment are trying to
say: "By the way, what we say does
not mean what is says." But it is obvi-
ous on the face of it that their objec-
tive is to supersede the authority of
the negotiating record. That is the
whole purpose of the ABM debate on
the so-called narrow interpretation.
Advocates of this amendment assert,
and I quote the Foreign Relations
Committee's report, "In sum, the
President may not act upon the Sen-
ate's consent without honoring this
condition."
That is wishful thinking. The Presi-
dent is acting now, in my opinion, in
open disregard of the War Powers
Resolution right out in the Persian
Gulf. Do not worry about it. We all sit
around and pontificate that there are
certain limits to our powers. I quote,
"Knowing what he or his administra-
tion does by statement or action
whether before or after the act of rati-
fication can alter the binding effect of
any condition which the Senate places
upon its consent for treaty ratifica-
tion."
That is not so at all. No one really
believes that. Sure, someone can write
it. But you,take the case up in a court
of law, you take it up in an interna-
tional court or before the U.S. Su-
preme Court. They are going to tell
you differently. I tell you that right
now.
That is not to say these authorita-
tive understandings mean nothing.
They mean a lot. What I am saying,
what the other Senator says, all has
significance, but it will be weighed in
the light of whether you are really
faithful to the negotiating record in
determining the intent; whether you
are using that record in authoritative
and common understandings at the
time to clarify ambiguity. Otherwise,
the treaty speaks for itself. Certainly,
the ABM Treaty does. It is clear, both
in the negotiating record and in au-
thoritative testimony by the principal
ABM Treaty negotiators. I am pre-
pared any time to debate the advo-
cates of the so-called narrow interpre-
tation. I know they have been ambiva-
lent, because they do not remember. I
questioned Secretary Brown the other
day at a hearing. He testified in favor
of some $4 billion for SDI and I asked
him about the letter. He said he would
have to refresh his memory. Memories
do get him. We went back to that
record and we studied it. Similarly, it
Is a valuable exercise to review the au-
thoritative testimony of all the nego-
tiators, the Secretary of State, the
Chief of Staff, the Secretary of De-
fense, and even Karpov on the other
side.
Mr. President, I want to give my
thanks to the distinguished majority
leader for providing me this opportu-
nity.
Mr. BYRD. Does the Senator want
additional time, 2 or 3 minutes?
Mr. HOLLINGS. That is all right.
The PRESIDING OFFICER. Who
yields time?
Mr. BYRD. Mr. President, I yield 10
minutes to the Senator from Connecti-
cut.
The PRESIDING OFFICER. The
Senator from Connecticut is recog-
nized for 10 minutes.
Mr. SARBANES. Will the Senator
yield. for a unanimous-consent re-
quest?
Mr. DODD. I am glad to yield.
The PRESIDING OFFICER. The
Senator from Maryland.
Mr. SARBANES. Mr. President, I
ask unanimous consent that an ex-
change that took place at the Ameri-
can Society of Newspaper_ Editors,
questions and answers, and an article
on - that exchange, be printed in the
RECORD.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, a.s,follows:
QUESTIONS AND ANSWERS
Q. Mr. President, I'm Joseph Stern from
the Baltimore Sun. You described the INF
treaty as a "done deal." But when it goes
before the Senate, a major question is going
to be whether the testimony offered by
your administration in 1972, and the whole
legislative history of the ABM treaty, is sub-
ject to reinterpretation by future adminis-
trations. Senator Nunn has described this as
a major constitutional question. When your
officials were testifying on the ABM treaty,
did you ever anticipate that a succeeding ad-
ministration would try to reinterpret that
testimony?
President NIXON. No, I did not. (Pause).
(Laugher.) Let me say, I?didn't mean to try
to cut you off. I'm simply?I was going to
say that there is, here, s constitutional ar-
gument, as you know. On the one side, it is
said that what a treaty means is what?how
it was presented to the Senate. Since the
Senate has to advise and consent, a treaty
must?it means whatever was presented to
the Senate. As far as what was presented to
the Senate-was concerned, it ws what we
call the narrow interpretation. There is no
question about that. And so Senator Nunn
is absolutely correct on that point.
On the other hand, there are those who
say?and here is where the counsel, of
course as you know, for the State Depart-
ment, who has taken that line?who say
that what a treaty really means is how was
it negotiated with the adversary, in this case
the Soviet Union. And that in the negotiat-
ing with the Soviet Union, the broad inter-
pretation was possible. That was the point.
Now, let me express my own view, though,
about how we ought to deal with that and
SDI in the future, because I think that
would be a followup question that you
might have. I don't go along with those that
say that what we should do is to go forward
with SDI, and just say that we accept the
counsel from the State Department's inter-
pretation. Because if you do that, you're
going to find that the Senate, particularly
with Nunn, a very powerful senator there,
is?will then block the funds for it. So that
isn't going to work.
What I feel about the SDI thing is that
we should first determine what our national
security requires. We will then determine, if
we want to go forward in SDI, we determine
what we have to do. If we believe that is
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CONGRESSIONAL ?SENATE ? 6763
May 26; 1988
within the treaty, we should negotiate that,
discuss that, with the Soviets. If they accept
our interpretation, we go forward with it. If
they do not accept our interpretation, then
we have a choice. As you know, the ABM
Treaty provides that if suprethe national in-
terests are involved, that then you can give
six-months' notice and go out of the treaty.
And my view is let's start, first, what does
the national security require? If it requires
SDI, then go forward with it and then see if
you can do it within the treaty. If you can't,
then break out of the treaty?by "breaking
out" I mean give the notice and go forward
in that way. That's the only way to do it.
LESSONS IN HONOR FROM RICHARD NIXON
(By Lars Erik Nelson)
WasanNoroN?Richard Nixon came to
town last week and promptly solved a prob-
lem that has been vexing the White House,
the State Department, the Pentagon and
the Senate for the last four years. He said
the Anti-Ballistic Missile Treaty that he
signed with Moscow in 1972 does not allow
the development of Star Wars.
There it is, flat and simple. Funny,
nobody had the wit to ask "him earlier. In-
stead, the government has torn itself apart
over what the treaty does and doesn't
mean?in the process, calling into question
the value of any U.S. signature an any
treaty_
The ABM treaty?as written, sigried and
ratified?prohibits the development, testing
and deployment of any space-based anti-
missile system. The Reagan administration,
which wants to develop a space-based
system, says, however, the treaty doesn't
mean what it says or what the Nixon admin-
istration said it would.
Reagan's State Department counselor,
Abraham Sofaer, says the executive branch
has a right to reinterpret treaties in the
light of the negotiations that produced
them and the other side's behavior after
ratification. Sofaer says the treaty in fact
allows tests for Reagan's Strategic Defense
Sem Sam Nunn (D-Ga.) calls this "an
arnaging sort of legalistic gymnastics" and a
challenge to the constitutional powers of
the Senate. Nunn insists on a "narrow inter-
pretation"?which would bar Star Wars
tests?arguing that a treaty can only mean
what the Senate ratifies.
When Nixon appeared at the American
Society of Newspaper Editors last week in
his new role as elder statesman, Joseph
Sterne of The Baltimore Sun asked him to
resolve the dispute.
"When your officials were testifying on
the ABM treaty," Sterne said, "did you ever
anticipate that a succeeding administration
would, try to, reinterpret that testimony?"
"No, I did not," Nixon said, and he turned
away. Nixon does not like to say anything
bad about the Reagan administration. But
Nixon also feels a responsibility, at 75, to
pass on his experience and his wisdom. He
turned back toward Sterne.
"There is, here, a constitutional argu-
ment, as you know. On the one side, it is
'said that what a treaty means is what and
how it was presented to the Senate. Since
the Senate has to advise and consent, a
treaty must mean whatever was presented
to the Senate. As far as what was presented
to the Senate, it was what we call the
narrow interpretation. There is no question
about that. And so Sen. Nunn is absolutely
correct on that point.
"On the other hand, there are those who
say . . . that what a treaty really means is
how it was negotiated with the adversary, in
this case the Soviet Union, and in negotia-
tion with the Soviet Union, broad interpre-
tation was possible.
"Now let me express my own view: I don't
go along with those that say that we should
go forward with SDI and . . . accept (So-
faer's) interpretation. Because if you da
that, you're going to find that the Senate,
particularly with Nunn, a very powerful sen-
ator, will then block the funds for it. So
that isn't going to work."
This is classic Nixon: Weaseling out of
your commitment is wrong?and besides it
won't work. Nixon continued:
. "What I feel about SDI is that we should
first determine what our national security
requires. We will then determine?if we
want to go forward with SDI?what we have
to do. If we believe that is within the treaty,
we should negotiate that, discuss that, with
the Soviets.
If they accept our interpretation, we go
forward with it. If they do not accept our in-
terpretation, then we have a choice. As you
know, the ABM treaty provides that if su-
preme national interests are involved, then
you can give six-months' notice and get out
of the treaty. . . . That's the only way to da
it."
How strange that we have reached a point
where we must learn lessons in honor from,
Richard Nixon?but, at the same time, how
encouraging that he, in his retirement, has
reached the point where he can persuasively
and usefully teach them.
The PRESIDING 01.101Calii. The
Senator from Connecticut.
Mr. DODD. Mr. President, first of
all let me commend the majority
leader and others who are involved in
making some very creative and
thoughtful suggestions to the condi-
tion presently concluded that came
out of the result of the hearings of the
Foreign Relations Committee involv-
ing this particular debate. Let me also
say and I gather this has already been
introduced into the RECORD, there is a
letter from Professor Henkin, of Co-
lumbia University, on the very issue of
whether or not a condition is applica-
ble to the interpretation of this treaty
and as such is binding on this or any
later President. President Kennedy
once noted scholars in the area of
treaty-making under the Constitution
suggests it is.
With all due respect to our good and
dear friend from South Carolina, Pro-
fessor Henkin has the expertise and
knowledge in that area and would sug-
gest anyway, not that he is without
those who would disagree with him, I
think it worth noting he drawa that
conclusion.
Mr. HOLLINGS. Mr. President, will
the distinguished Senator yield?
Mr. DODD. I will be glad to yield.
Mr. HOLLINGS. Will we at this time
include in the RECORD for edification
of all just exactly what Professor
Henkin said in toto? I have a Restate-
ment of the Law of the Foreign Rela-
tions Law of the United States and
particularly from section 303 right on
through, those particular references.
Can we include this in the RECORD at
this particular time?
Mr. DODD. Absolutely.
Mr. HOLLINGS. You see he comes
gown on both sides.
Mr. DODD. Like any good law pro-
fessor.
Mr. HOLLINGS. Mr. President, I ask
unanimous consent to have that mate-
rial printed in the RECORD.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
MAX 24, 1988.
Mr. JOHN B. RITCH III,
Deputy Staff Director, Senate Foreign Rela-
tions- Committee, Washington, DC.
DEAR MR. RITCH: It has come to may at-
tention that I have been quoted as saying
that the Senate Foreign Relations Commit-
tee Report on the INF Treaty misrepresent-
ed my views. I have made no such statement
and that is not my view. I did express some
concern that, in view of the way my name
was used in the Report, a reading?surely a
quick reading?of the Report might lead the
reader to believe that I was behind the Re-
port's statement of, and attack on, the so-
called Sofaer Doctrine and that I favored
the addition of the Condition on interpreta-
tion.
Let me make my position clear. I discussed-
the substance of the statement of Constittr-
tional principle with you and others; I agree
that what has emerged in that respect is
substantively sound. As. I said from the be-
ginning, however,. I am not in favor of
making a statement of Constitutional prin-
ciple a condition of Senate consent. If the
Senate thinks it is necessary or desirable to
declare its views of Constitutional princi-
ple?which in the present instance I agree
are sound?it should put them into a sepa-
rate Resolution.
The Committee draft lii effect combines
two resolutions: it combines an understand-
ing, stated as a condition, on the interpreta-
tion of the particular INF Treaty (which
condition is binding on the President, and
on future Presidents) with a statement of
general Constitutional principle (which is
not binding on anyone). If there is insist-
ence that the reference to Constitutional
principle should be included, the text as it
appears in the Committee Report is not un-
sound. The condition is applicable to the in-
terpretation of this Treaty and as such is
Winding on this and any?later President; the
statement of Constitutional principle is in-
chided only parenthetically in a kind of edi-
torial reference in passing. Perhaps it would
be better to make the parenthetical charac-
ter of the reference to the Constitutional-
principle even clearer by adding a few
words, so that the introductory phrase-
would read:
That the Treaty shall be subject to the
following principles, which, in the judgment
of the Senate, derive, as a necessary implica-
tion, etc.
All good wishes.
Sincerely,
LOUIS HENHIN.
RESTATEMENT OF THE LAW: THE FOREIGN
RELATIONS LAW OF THE UNITED STATES
? 303. Authority to Make International Agree-
ments: Law of the United States
Subject to ? 302(2),
(1) the President, with the advice and con-
sent of the Senate, may make any interna-
tional agreement of the United States in the
form of a treaty;
(2) the President, with the authorization
or approval of Congress, may make an inter-
national agreement dealing with any matter
that falls within the powers of Congress and
of the President under the Constitution;
(3) the President may make an interna-
tional agreement as authorized by treaty of
the United States;
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S 6764 CONGRESSIONAL RECORD ?SENATE :
(4) the President, on his own authority,
may make an international agreement deal-
ing with any matter that falls within his in-
dependent powers under the Constitution.
Comment:
a. United States terminology as to interna-
tional agreements. United States terminolo-
gy as to international agreements differs
from that employed in the Vienna Conven-
tion. See Introductory Note to this Part.
The United States Constitution in Article
. II, Section 2, provides that the President
"shall have Power, by and with the Advice
and Consent of the Senate, to make Trea-
ties, provided two-thirds of the Senators
present concur." It is therefore necessary to
use a term other than "treaty" to refer to
agreements made by other processes. Such
agreements are sometimes referred to col-
lectively as "international agreements other
than treaties" and specific categories are re-
ferred to as "Congressional-Executive agree-
ments" (Subsection (2)), "executive agree-
ments pursuant to treaty" (Subsection (3)),
and "sole executive agreements." (Subsec-
tion (4)). However, the term "treaty" is not
always restricted to the meaning signified in
Article II, Section 2. It has been interpreted
to include other international agreements in
the provisions of the Constitution defining
the Judicial Power of the United States (Ar-
ticle III, Section 2) and the Supremacy
Clause (Article VI). A reference to a
"treaty" in an act of Congress has in certain
contexts been construed to include other
international agreements.
b. Breadth of treaty power. Subject to con-
stitutional limitations, ? 302(2), the treaty
power may be used to make international
agreements of the United States on any sub-
ject. See Comment c and ? 302, Comments c
and d.
c. Treaties and the legislative powers of
Congress. A treaty may deal with a subject
that Congress could not regulate by legisla-
tion in the absence of treaty. See Missouri
V. Holland, 252 U.S. 416, 40 S.Ct. 382, 64
L.Ed. 641 (1920); ? 302, Comment d. A treaty
may also deal with a subject that can be reg-
ulated by aca. of Congress, for example, a
tariff, other regulations of foreign com-
merce, postal service, coinage, war and
peace. That treaties and statutes can deal
with the same subject is reflected in the
rule that when a treaty and a statute are in-
consistent the later in time prevails. See
? 115. A different question is whether a
treaty on a particular subject can be self-
? executing. While a treaty may properly obli-
gate the United States to pay money or to
go to war, action by Congress is required to
appropriate the funds or to declare or oth-
erwise authorize war. See ? 111, Comment i.
d. Advice and consent of Senate. Under
Article II, Section 2 of the Constitution,
quoted in Comment a, it is the President
who "makes" a treaty by ratifying or acced-
ing to it (? 312, Comment d), but he may do
so only after the Senate consents. Even if a
treaty has received the advice and consent
of the Senate, the President has discretion
whether to make the treaty.
The Senate often has given its consent
subject to conditions. Sometimes the Senate
consents only on the basis of a particular
understanding of the meaning of the treaty,
or on condition that the United States
obtain a modification of its terms or enter a
reservation to it. See ? 314. The Senate may
also give its consent on conditions that do
not require change in the treaty but relate
to its domestic application, e.g., that the
treaty shall not be self-executing (? 111(4));
or that agreements or appointments made
in implementation of the treaty shall re-
quire the Senate's advice and consent.
There is no accepted doctrine indicating
limits on the conditions the Senate may
impose. Surely, a condition that has no rela-
tion to the treaty would be improper, for ex-
ample, a requirement that the President dis-
miss or appoint some cabinet officer. But a
condition having plausible relation to the
treaty, or to its adoption or implementation,
is presumably not improper, and if the
President proceeds to make the treaty he is
bound by the condition. Compare ? 339,
Comment a and Reporters' Note 3.
e. Congressional-Executive agreements.
Congress may enact legislation that re-
quires, or fairly implies, the need for an
agreement to execute the legislation. Con-
gress may authorize the President to negoti-
ate and conclude an agreement, or to; bring
into force an agreement already negotiated,
and may require the President to enter res-
ervations. See, e.g., ? 468, Reporters' Note 6.
Congress may also approve an agreement al-
ready concluded by the President. Congress
cannot itself conclude such an agreement; it
can be concluded only by the President, who
alone possesses the constitutional power to
negotiate with other governments.
Since any agreement concluded as a Con-
gressional-Executive agreement could also
be concluded by treaty (see Subsection (1)
and Comment b), either method may be
used in many cases. The prevailing view is
that the Congressional-Executive agreement
can be used as an alternative to the treaty
method in every instance. Which procedure
should be used is a political judgment, made
in the first instance by the President, sub-
ject to the possibility that the Senate might
refuse to consider a joint resolution of Con-
gress to approve an agreement, insisting
that the President submit the agreement as
a treaty.
Constitutional limitations applicable to
treaties apply also to Congressional-Execu-
tive agreements. See ? 302.
f. Agreements pursuant to treaty. An exec-
utive agreement may be made by the Presi-
dent pursuant to a treaty, Subsection (3),
when the executive agreement can fairly be
seen as implementing the treaty, especially
If the treaty contemplated implementation
by international agreement. Such an execu-
tive agreement has the same effect and va-
lidity as the treaty itself, and is subject to
the same constitutional limitations as the
treaty. See ? 302.
g. President's authority to make sole exec-
utive agreements. The Constitution desig-
nates the President as commander in chief,
and gives him power to make treaties and
appoint ambassadors (Article II, Section 2);
it provides that he "shall receive Ambassa-
dors" and "take Care that the Laws be
faithfully executed" (Article II, Section 3).
There is some authority for the view that
the Executive Power clause (Article II, Sec-
tion 1) is itself a grant of power and vests in
the President all "executive power," notably
the conduct of foreign relations. See 7 A.
Hamilton, Works 76, 81 (Hamilton ed. 1851)
("Pacificus" letter). These various sources
of authority support power for the Presi-
dent to conclude some international agree-
ments. It is established that the President
can make agreements incidental to recogniz-
ing foreign states or governments. He can
also make agreements as commander in
chief during declared wars, including armi-
stice agreements. Presidents have asserted a
broad authority to make many other inter-
national agreements, at least in the absence
of inconsistent legislation or of Congression-
al action restricting such agreements. See
Comments h and i. The great majority of
sole executive agreements are of a routine
character.
h. Limitations on subject matter of sole ex-
ecutive agreements. Sole executive agree-?
ments are subject to the constitutional limi-
tations applicable to treaties and other
May 26, 1,988
international agreements. To the extent
that the President's constitutional author-
ity overlaps powers of Congress (see ? 1, Re-
porters' Note 3), he may make sole execu-
tive agreements on matters that Congress
may regulate by legislation. As to whether
the President can make an agreement incon-
sistent with an act of Congress, and wheth,
er Congress can legislate to curtail such
agreements, see Comments i and j.
L Congressional restrictions on sole execu-
tive agreements. Congress has not enacted
restrictions on sole executive agreements
generally, but some statutory restrictions on
Presidential authority would forbid some
sole executive agreements. For example, the
War Powers Resolution of 1973, 50 U.S.C.
? 1541-48, inhibits the President from
making agreements that commit the United
States to introduce armed forces into hostil-
ities or into situations where involvement in
hostilities is likely, or to increase or rede-
ploy United States combat forces abroad.
See also the Arms Control and Disarma-
ment Act, Reporters' Note 8. The validity of
such restrictions on Presidential powers,
and of attempts to control and limit sole ex-
ecutive agreements generally, has not been
authoritatively determined and may differ
according to the character of the restriction
and the circumstances of its application.
j. Sole executive agreements as law of the
/and. Sole executive agreements within the
President's constitutional authority are law
of the United States and supreme over State
law. Like treaties and other international
agreements, they can be 'superseded as do-
mestic law by later international agree-
ments or by acts of Congress within its con-
stitutional authority. Their status in rela-
tion to earlier Congressional legislation has
not been authoritatively determined. See
? 111, Comment d and Reporters' Note 2;
1115, Cqmment d and Reporters' Note 5.
REPORTERS' NOTES
1. Use of term "treaty" in domestic law.
For cases in which a reference to "treaty"
has been construed to include other interna-
tional agreements, see B. Altman & Co. v.
United States, 224 U.S. 583, 32 S.Ct. 593, 56
L.Ed. 894 (1912) (executive agreement is
"treaty" under statute conferring appellate
jurisdiction); Weinberger v. Rossi, 456 U.S.
25, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982)
(under statute forbidding employment dis-
crimination except where permitted by
"treaty," "treaty" includes executive agree-
ment). See ? 111, Reporters' Notes 2 and 4.
2. Treaties and legislative powers of Con-
gress. In Edwards v. Carter, 580 F.2d 1055
(D.C.Cir. 1978), certiorari denied, 436 U.S.
907, 98 S.Ct. 2240, 56 L.Ed.2d 406 (1978), the
court, affirming the general principle that
treaties may deal with matters within the
legislative power of Congress, held that a
treaty may -dispose of property of the
United States in the Panama Canal Zone,
although Article IV, Section 3, clause 2, of
the Constitution provides that "The Con-
gress shall have Power to dispose of and
make all needful Rules and Regulations re-
specting the Territory or other Property be-
longing to the United States . . . ." (That
the treaty in fact disposed of property be-
longing to the United States was assumed
without discussion.) Compare ? 111(4) and
Comment i and Reporters' Note 6 to that
section.
3. Senate advice and consent. There is
confusion about terminology in United
States treaty practice. Properly speaking,
the Senate does not ratify a treaty; the
Senate gives its consent to ratification. The
President makes, ratifies, or accedes to a
treaty on behalf of the United States. The
Senate cannot amend a treaty or enter res-
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CONGRESSIONAL RECORD - SENATE
ervations to it. It can, however, give its con-
sent to a treaty on condition that it be
modified, or, in the case of a multilateral
agreement, that the United States enter one
or more reservations. The President need
not fulfill those conditions, but he cannot
proceed to make the treaty unless they are
met, whether they concern the terms of the
treaty or its implementation in the United
States.
The President may decline to make the
_treaty after the Senate has approved it.
Comment d. Sometimes there has been a
substantial delay between consent by the
Senate and ratification. The United Nations
Convention on the Recognition and En-
forcement of Foreign Arbitral Awards of
1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330
U.N.T.S. 38, received Senate consent in 1968
but the United States did not accede to it
until 1970, following enactment of imple-
menting legislation. See? ? 487. Reservations
proposed by the Senate or other conditions
attached to its consent may move the Presi-
dent not to adhere to the treaty. For exam-
ple, President Taft declined to ratify the ar-
bitration treaties of 1911 with France and
Great Britain after the Senate demanded
unwelcome reservations. Fleming, The
United States and the World Court 21
(1945); 4 Wiktor ed., Unperfected Treaties
of the United States of America, 1776-1976,
at 217-18, 225-26 (1979). See also ? 314.
The Constitution gives the President
power to make treaties "by and with the
Advice and Consent of the Senate," but
Senate advice, as distinguished from con-
sent, is not necessary. Presidents since the
early years of the nation's history generally
have refrained from formally consulting the
Senate prior to negotiating a treaty. Howev-
er, there has been a practice of notification
and exchange of information and views with
Senate committees or selected members of
the Senate, and sometimes with committees
or selected members of the House of Repre-
sentatives, especially where- legislative im-
plementation might be necessary, or where
approval as a Congressional-Executive
agreement was contemplated. Infrequently,
the Senate has given formal advice. Com-
pare the resolution of both Houses which
approved the Interim Strategic Arms Limi-
tation Agreement and "urge[d]" the Presi-
dent to seek further talks and to work to-
wards further reduction in armaments. 86
Stat. 746-47 (1972). For other resolutions of
that character, see Treaties and Other
International Agreements: The Role Of the
United States Senate, S.Rep.No, 205, 98th ?
Cong., 2d sess. at 92-93 (1984).
4. Senate conditions of domestic import. A
condition imposed by the Senate that does
not seek to modify the treaty and is solely
of domestic import, is not part of the treaty
and hence does not partake of its character
as "supreme Law of the Land." See ? 11(1)
and Comment d. It was once assumed,
therefore, that a .Senate proviso that a
treaty shall not take effect for the United
States until Congress adopts implementing
legislation could not have the force of law
necessary to prevent the agreement from
automatically taking effect as law in the
United States. See. Power Authority of New
York v. Federal Power Commission, 247
F.2d 538 (D.C.Cir. 1957), vacated and re-
manded with instructions to dismiss as
moot, 355 U.S. 64, 78 S.Ct. 141, 2 L.Ed.2d 107
(1957). The effectiveness of such a Senate
provision, however, does not depend ? on its
becoming law of the land as part of the
treaty. Such a proviso is an expression of
the Senate's constitutional authority to
grant or withhold consent to a treaty, which
includes authority to grant consent subject
to a condition. The authority to impose the
condition implies that it must be aiven
effect in the constitutional system. See
Henkin, "The Treaty Makers and the Law
Makers: The Niagara Power Reservation,"
56 Colum.L.Rev. 1151 (1956). ?
The Senate has not made a practice of at-
taching conditions unrelated to the treaty
before it. If the Senate were to do so, or
were to attach a condition invading the
President's constitutional .powers-for ex-
ample, his power of appointment-the con-
dition would be ineffective. The President
would then have to decide whether he could
assume that the Senate would have given its
consent without the condition.
5. United States treaties with Indian
tribes. Until the practice was terminated by
the Act of Congress of March 3, 1871 (25
U.S.C. ? 71), agreements by the United
States with American Indian tribes usually-
were called "treaties," were concluded as
treaties with the advice and consent of the
Senate, and were treated by the courts like
other treaties in principle, although some-
times with greater flexibility in fact. See
Worcester v. Georgia, 31 U.S. (6 Pet.) 515,
582, 8 L.Ed. 483 (1832) (treaties with Indians
"should never be construed to their preju-
dice"); United States v. Shoshone Tribe, 304
U.S. 111, 116, 58 S.Ct. 794, 797, 82 L.Ed. 1213
(1938) (Indian treaties to be construed "in
the sense in which naturally the Indians
would understand them"); cf. Squire v. Ca-
poeman, 351 U.S. 1, 6-7, 76 S.Ct. 611, 614-
615, 100 L.Ed. 883 (1956). The Act of 1871
preserved the obligation of prior treaties,
and cases involving pre-1871 Indian treaties
continue to arise. The courts have applied
to them the principles applicable to treaties
with foreign states, e.g., that subsequent leg-
islation will be construed so as to avoid ab-
rogating a prior treaty. Washington v.
Washington State Commercial Passenger
Fishing Vessel Ass'n, 443 U.S. 658, 690, 99
S.Ct. 3055, 3076, 61 L.Ed.2d 823 (1979),
modified, 444 U.S. 816, 100 S.Ct. 34, 62
L.Ed.2d 24 (1979).-See ? 114.
6. Executive agreement pursuant to treaty.
An executive agreement defining jurisdic-
tion over United States forces in Japan, con-
cluded pursuant to treaty, was given effect
In Wilson v. Girard, 354 U.S. 524, 77 S.Ct.
1409, 1 L.Ed.2d 1544 (1957).
7. Constitutional basis of Congressional-
Executive agreements. Although the Consti-
tution speaks only of the power of the Presi-
dent to make treaties and prescribes a spe-
cial procedure for making them, it is long
established that the United States may
make international agreements other than
treaties, and do so by other procedures. B.
Altman & Co. v. United States, Reporters'
Note 1; see also United States v. Belmont,
301 U.S. 324, 57 S.Ct. 758, 81 LEd. 1134
(1937) cited in ? 111, Reporters' Note 2.
In principle, a Congressional-Executive
agreement must be within the powers of the
President and Congress. As stated in Sub-
section (2), such an agreement can be made
on any subject within the legislative powers
of Congress or within the President's own
constitutional authority. It has been sug-
gested that the authority to make a Con-
gressional-executive agreement may be
broader than the sum of the respective
powers of Congress and the President; that
In international matters the President and
Congress together have all the powers of
the United States inherent in its sovereign-
ty and nationhood, and they can therefore
make any international agreement on any
subject. See ? 302, Comment a. Issues of del-
egation of authority are not involved. Cf.
United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed.
255 (1936).
On numerous occasions, Presidents have
made certain kinds of agreements, such as
claims settlements, on their own authority,
S 6765
and Congress has not objected. The Su-
preme Court upheld such agreements,
though it is not clear whether it did so on
the ground that such agreements had been
authorized by Congress by implication,
under the principle of Subsection (2), or be-
cause such agreements are within the Presi-
dent's sole authority, Subsection (4), such
authority having been confirmed by a histo-
ry of Congressional acquiescence. Compare
Dames & Moore v. Regan, 453 U.S. 654, 101
S.Ct. 2972, 69 L.Ed.2d 918 (1981).
8. Congressional-Executive agreement as
alternative to treaty. At one time it was
argued that some agreements can be made
only as treaties, by the procedure designat-
ed in the Constitution. See, for example,
Borchard, "Shall the Executive Agreement
Replace the Treaty?" 53 Yale L.J. 664
(1944); Borchard, "Treaties and Executive
Agreements-A Reply," 54 Yale L.J. 616
(1945). Scholarly opinion has rejected that
view. McDougal and Lans, "Treaties and
Congressional-Executive or Presidential
Agreements: Interchangeable Instruments
of National Policy," 54 Yale L.J. 181, 534
(1945); Henkin, Foreign Affairs and the
Constitution 173-76 (1972); see also 40 Op.
The PRESIDING OFFICER, The
Senator from Connecticut.
Mr. SPECTER. W. President, will
the Senator yieldl
Mr. DODD. If I may proceed with
my remarks, then I will be glad to
yield. I would like to make a general
comment on the position we are in
today. But I will come back and I will
be glad to yield at that particular
moment.
Mr. President, as one of the authors
of the condition the Foreign Relations
Committee attached to the resolution
of ratification on treaty interpreta-
tion, I rise to speak for retaining that
condition with the modifications sug-
gested by the distinguished majority
leader, whom I compliment for his cre-
ative suggestions. I compliment those
who are responsible for the modifica-
tions that have been made.
Ever since the committee markup,
this condition has been under attack
by its opponents in floor statements,
In at least three Dear Colleague letters
that I am aware of, and in statements
In the media. What is astonishing to
me in these attacks is the fact that I
have not seen one single opposing
statement that correctly represented
of what that condition means. In
other words, this one-sided debate is
conducted on distortions and misrepre-
sentations of the content and effect of
this condition. What I would like to do
at this point is to describe in the sim-
plest possible language the exact con-
tent and effect of this condition and
have its declared opponents take on
the real thing instead of strawmen and
red herrings raised, it seems to me,
over the last several weeks that this
issue has been in debate.
What this condition does is very
simple. It reinforces what is already
clear from the constitution; that is,
that the Senate shares with the Presi-
dent the constitutional power to make
treaties and that the Senate has to be
accorded a full understanding of what
exactly a treaty means, what obliga-
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S 6766-
CONGRESSIONAL RECORD ? SENATE
tions it imposes, at the time the
Senate is asked to give its advice and
consent. This means assuring that the
Executive and the Senate has identical
understanding of the meaning and the
legal effect of the text of the treaty at
that time, and that subsequently the
Executive does not have the right to
unilaterally change the content of
that understanding. That is all this
condition does, it reiterates what is un-
disputably clear from the Constitution
Itself given its solid constitutional
foundation, there should be no need
for this condition, unfortunately,
these clear constitutional principles
were called into question recently by
the administration and, specifically,
the State Department legal advisor, so
the need arose to reinforce them. This
is not an attack on the Constitution.
This is a defense of the Senate's con-
stitutional powers.
Let me simplify this even further by
reviewing the ratification process in
the Senate.
The President, as we all know signs a
treaty that he negotiated through his
emissaries and submits it to the
Senate. At this point, Senators usually
have only a scant idea of what the
treaty contains. Senators were not par-
ties to the negotiations. A few of them
may have been consulted. Most of
them certainly were not. The Senate
had little or no input onto the negotia-
tions. The President, up to this par-
ticular print was free to shape the
treaty according to his own priorities
subject, of course, to the consent of
the other contracting party.
The executive-Senate interchange in
the ratification process is twofold. The
executive presents the text of the
treaty with its annexes, if any, and
then proceeds to explain it to the
Senate. Through the experts of the
administration, it explains the mean-
ing of the words of the treaty, wherev-
er any ambiguity may exist, and ex-
plains the effect of those words and
provisions under international law,
again, the President retains a substan-
tial control over this process. The
treaty is his product, he knows how it
was written, what exactly was agreed
to, and he is free to give any kind of
explanation he deems to be appropri-
ate, up to this particular point, the
Senate is merely an audience, a very
active audience to be sure, asking
questions, following up, conducting its
own investigation, still, the material
presented, text plus explanations, is
substantially under the control up to
this particular print of the executive
branch.
It is evident from the advice and
consent provision of the Constitution,
that the purpose of this process is to
provide the Senate a full understand-
ing of the content and effect of the
treaty before the Senate consents to
Its ratification. Without such an un-
derstanding, shared with the' execu-
tive, the advice and consent function
would be a largely pointless exercise it
does not require a great leap of logic.
In fact, it is also self-evident that once
the Senate consented to ratification of
the treaty. As presented by the execu-
tive, the executive has no unilateral
right to change the content of that
understanding without the agreement
of the Senate it cannot come back and
say to the Senate that :`you may think
you agreed to version a of the treaty,
but now I decided that you really
agreed to version b". This is the es-
sence of this dispute, our condition is
the simple reiteration of the fact that
the constitutional advice and consent
power does not allow for such chica-
nery.
Instead of arguing with this funda-
mental and commonsense principle,
critics of the condition stay on the
level of generalities about "power-
grabbing", "artifical constitutional
confrontation", "partisan dispute" and
the like. This will not do. I challenge
every opponent of this condition to
come down from the level of general-
ities and focus on the essence. To
oppose this condition, you have to tell
the Senate, that contrary to the posi-
tion taken by the Foreign Relations
Committee, the President does have
the right to unilaterally change the
content of the understanding that was
the basis of the Senate's advice and
consent. If you do not believe this, you
ought to support the condition be-
cause all it does is to reiterate the sub-
stance and the integrity of the Sen-
ate's treaty power.
The opponents' position carries at
least one of two implications. Either
the executive has to be allowed to de-
ceive the Senate?or the executive is
so incompetent that it has to be al:
lowed liberal opportunity to unilater-
ally change its understanding of the
treaty that it authored. I find both of
these premises unacceptable.'
As for the charge that this condition
will make thousands of pages of ad-
ministration testimony binding with-
out regard to the importance or rel-
evance of the particular reference or
the rank of the witness in question,
this objection is simply groundless. I
carefully reviewed the objections of
the administration as presented, for
Instance, in the letter of White House
Counsel Arthur Culvahouse to Sena-
tor LUGAR, dated March 17 of this
year.
The PRESIDING OFFICER (Mr.
BREAUX). The time of the Senator
from Connecticut has expired.
Mr. DODD. Mr. President, I request
of the opponents if I may have a
couple of more minutes, and then I
would be glad to respond to some ques-
tions. I request 2 minutes from the op-
ponents of the condition.
Mr. BYRD. Mr. President, is the
Senator supporting the Byrd amend-
ment?
Mt. DODD. I am supporting the
Byrd amendment.
Mr. BYRD. I yield the Senator 2
minutes.
May 26, 1988
? The PRESIDING OFFICER. The
Senator is recognized for 2 additional
minutes.
Mr. DODD. I thank the majority
leader. I am sorry the majority leader
did not understand exactly where I
was coming out on this.
In my review of the letter dated
March 17 of this year, it is my convic-
tion that, while our Constitution an-
ticipates conflict and struggle between
branches of our Government, it works
best when those conflicts and strug-
gles are tempered by civility and ac-
commodation. In this spirit I suggest-
ed two modifications to the draft to
allay the concerns of the White
House. One modification reasserted
the self-evident rule that the primary
source of treaty interpretation is the
text itself. The other made clear that
of thousands of pages of Executive tes-
timony only those parts are considered
binding where authorized witnesses of
the executive directly analyze specific
parts of the text as for their meaning
and legal effect. This reduces those
ominous "thousands of pages" to a few
dozen pages at most in my estimate. I
call my colleagues' attention to what
must have been obvious to any observ-
er of these hearings. Even high-rank-
ing administration witnesses showed
enormous caution when addressing
the interpretation of specific treaty
language. I have seen Secretary Shultz
turning to the negotiators or his other
experts repeatedly on such questions.
When I queried Ambassador Glitman,
whose knowledge of the field of arms
control is nothing less than encyclope-
dic, on a specific question of interna-
tional law, he answered me only upon
consulting his expert on international
law sitting behind him. The implica-
tion by the opponents of this condi-
tion, that there are somehow hun-
dreds or thousands of loose and care-
less assertions by executive witnesses
spread over the record and this condi-
tion will make all of them binding is
nonsense.
While this dispute originated in the
ABM Treaty controversy, this condi-
tion avoids trying to solve that contro-
versy using the ratification procedure
of this treaty. One can vote for this
amendment and still support the
broad interpretation_ of the ABM
Treaty because that debate is mostly
over facts, and this condition is over
constitutional principles. You ought to
vote against this proposal only if you
believe that under the Constitution
the Executive can bring a treaty here,
give you an authoritative explanation
directed to the meaning of its text,
and than, after the treaty is ratified,
to return and state that that was not
really -what the text meant, it meant
something else.
Let me finally dispose of a red her-
ring. The March 17 letter of White
House counsel raises the possibility
that this condition would increase_ the
risk of a treaty having one meaning
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CONGRESSIONAL RECORD ? SENATE S 6767
domestically and a different meaning
under international law.
First of all, this objection is curious
from a White House that is trying
hard to give a crucial provision of the
ABM Treaty a domestic meaning that.
is very different from the meaning
shared with the Soviets under interna-
tional law.
Second, while the possibility for dual
effect always exists in theory, the
modification I suggested, restricting
the binding effect of executive presen-
tations to those parts that speak di-
rectly to the text of the treaty mini-
mizes this danger.
Third, disputes over the interpreta-
tion of an international agreement
almost never occur this way, that is, -
by an attempt to reverse the very
meaning of a treaty provision authori-
tatively given at the time of ratifica-
tion.
Interpretation disputes typically
arise in two ways. One is a; legal gap'.
The treaty was supposed to have cov-
ered a given set of circumstances, but
by a drafting error or oversight it does
not. There is no treaty text covering
the case, there can be no shared un-
derstanding between the Executive
and the Senate, and the President is
free to enter the dispute with our
treaty partner to try to work out the
issue under the rules of international
law. The second type of dispute arises
from changed circumstances, new
facts not foreseen and provided for at
the time of writing the treaty. The
result is the same, no shared under-
standing could exist with the Senate
and the President has a free hand to
negotiate a solution with our treaty
partner.
I gave these examples to illustrate to
my colleagues *not how much but how
little this finding and condition will
bind the President. With a little sim-
plification, what it says is that the Ex-
ecutive has no right either to mislead
the Senate, or unilaterally change
what was mutually agreed to under
the Constitution. In closing, let me
just point out that this is a fundamen-
tal general principle under any system
of law, domestic or international.
I strongly urge the support of the
Byrd compromise proposal that is
before us. It would, I believe, tremen-
dously enhance this particular docu-
ment and clarify what is an extremely
important point. There is nothing triv-
ial about this debate at all.
The PRESIDING OFFICER. The
time of the Senator has expired.
Who yields time? \
Mr. SPECTER. Mr. President, at
last report, I had 23 minutes remain-
ing. I would like to ask if that is so?
The PRESIDING OFFICER. The
Senator is correct.
Mr. SPECTER. Mr. President, on my
time, I would ask a question of the dis-
tinguished Senator from Connecticut,
but there is not time enough Under
this arrangement to debate anything.
I wanted to have an exchange with
the distinguished Senator from Michi-
gan but since there is not time to
debate it, I simply want to state for
the record this point. According to my
copy of Professor Henkin's letter, he
says:
I am not in favor of making a statement
of constitutional principle a condition of
Senate consent.
So I do not believe that Professor
Henkin favors that, as represented by
the distinguished Senator from Con-
necticut.
But I will add this, Mr. President:
Professor Henkin's letter is sufficient-
ly complicated so it requires a lot of
analysis, more than the few moments
I have had today, and it requires some
debate, as well.
I yield the floor. I ask how much
time I have remaining, Mr. President?
The PRESIDING OFFICER: The
Senator has 22 minutes remaining.
Mr. SPECTER. I thank the Chair.
The PRESIDING OFFICER. Who
yields time?
Mr. WILSON. Mr. President, I yield
5 minutes to the Senator from Dela-
ware (Mr. Rona
The PRESIDING OFFICER. The
Senator from Delaware is recognized
for 5 mimutes.
CONDITONAL CONSENT
Mr. ROTH. Mr. President, it is well
established that in considering a
treaty the Senate may grant its con-
sent, may refuse its consent, or may
condition its consent. The Senate's
power to attach conditions is grounded
in the customs of this body and recog-
nized in the opinions of the Supreme
Court.
Although the Senate's power to
attach conditions is clear, the legal
effect of exercising that power ap-
pears to be cloudy. In my opinion, the
confusion about conditions arises from
a failure to make a fundamental dis-
tinction between making law and
making a political bargain.
How we make law is stated in the
Constitution. The Senate participates
in three kinds of lawmaking: In writ-
ing amendments to the Constitution,
in writing legislation, and in consent-
ing to treaties. These are the only
ways for the Senate to make binding
law under the Constitution.
Is the pending amendment to the
resolution binding law? No it is not.
Clearly, it is not part of a constitution-
al amendment or statute. Nor is it part
of a treaty. Therefore, the condition is
not binding law. If it is not binding,
then no one is bound?either the Sovi-
ets or the President.
, Of course, making a law is not the
only way to prompt someone to act.
Bargaining is a widely accepted tech-
nique. The mother who promises to
take her son swimming if he cleans up
his room or the Senator who promises
a favor in return for a favor is not
making law. Just a bargain.
People respond to bargaining be-
cause they want something and not
because they wish to avoid violating a
law. Suppose that the Senate consent-
ed to the INF Treaty on condition
that the treaty not take effect until
the President removed the Secretary
of State. That condition in itself would
not have the force of law. The Presi-
dent would not be legally bound to
remove the Secretary of State. But he
would have to politically if the wanted
the Senate's consent to the treaty.
The Senate's posture may be viewed as
a refusal to consent outright but an
offer to consent on other terms. In
effect, the Senate is exacting a price
for its consent.
Normally, bargaining works better
when the price exacted is paid up
front. But suppose the Senate granted
Its consent this month on condition
that the President would remove the
Secretary of State at some later time,
say, by the end of July. Suppose fur-
ther that the condition is not met. On
August 1 do we have a treaty or not?
In my opinion, the answer is yes.
The condition is not law. The Senate
made a bad deal insofar as it gave its
consent but is left to hope that the
President complies. The condition is
not part of the treaty. The signatories
therefore remain obligated.
The pending amendment is a condi-
tion much like the above example. It
seeks to impose on the President and
the Supreme Court certain rules for
interpreting the treaty, which must
temporally relate to postratification
events. While it makes clear its pur-
pose not to impact upon the obliga-
tions assumed by the signatories -urider
the treaty, it seeks nonetheless to
claim that it is binding domestically. I
do not believe that it is possible for a
condition to be nonbinding interna-
tionally while at the same time it is
binding domestically.
A condition is either binding or it is
not. For a condition to be legally bind-
ing it must be part of a treaty, statute,
or constitutional amendment. The
pending amendment is none of those.
Therefore, it is not binding. If it is not
binding, it is not binding international-
ly or domestically.
Once the Senate consents, where
does the condition get its authority to
bind? The Senate can prompt action
by withholding or threatening to with-
hold its consent and making a bargain.
But there is hardly any leverage here.
Once the Senate consents and there
are no conditions contained in the
treaty papers, the executive branch
has what it wants and the President,
particularly succeeding Presidents, are
free to ignore bargains that are not
part of the treaty.
Proponents of the condition may
argue that the condition is binding on
the President because he accepts the
condition when he signs the protocol
of ratification. But the condition is not
part of the papers he signs. Moreover,
even if it were part of the papers, it
makes no difference. Remember that
the President signed the Grarrun-
Rudman-Hollings law; yet was able to
challenge one of that law's provisions
that affected his authority to with-
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S 6768 CONGRESSIONAL RECORD ? SENATE May 26, 1988
hold spending. The Supreme Court
struck down that provision and, in
effect, said it was not legally binding
on the President. The fact that the
President accepted the invalid provi-
sion by actually signing the legislation
was not said to transform a nonbind-
ing provision into a binding one.
Therefore, in my opinion, the Presi-
dent could not be deemed to accept
the reported condition either in fact
or in law.
If the law were otherwise, if the
President were held to accept the re-
ported condition, we would be present-
ed with the incongruous situation that
the condition binds the President but
not the Supreme Court. The Supreme
Court is part of the "United States"
referred to in the text of the condi-
tion, and it also from time to time in-
terprets treaties. But as far as I know,
they are not part of the bargain.
Therefore, within the context of this
argument, the Supreme Court would
not be bound while the President is,
even though the condition embraces
them both. This cannot be.
What we have here is a condition
that is not binding at all, neither
internationally nor domestically. In
my opinion, the notion of splitting
Senate consent and placing it on two
tracks?one for the Soviets and an-
other for the President?is novel, con-
fusing, and mischievous.
Proponents who argue that the con-
dition has legal significance may inad-
vertently be creating a basis for the
Soviets to claim, at some future date,
that the treaty is no longer binding on
them. For they could argue at some
future time when the President inter-
prets the treaty that the condition has
been violated, that as a consequence
the Senate's conditional consent is no
longer operative, that the United
States is not bound to treaty obliga-
tions for which there is no Senate con-
sent, and that therefore the Soviets
themselves are no longer bound.
If the Soviets fail to grasp the
notion of split consent, with a condi-
tion that binds the United States but
not the Soviets, I cannot blame them.
If they take the position that a condi-
tion is either binding or it is not, and if
proponents and opponents of the con-
dition take the view it is binding, as
many do, then we have a problem
here. If the Soviets someday need an
argument to cover possible violation or
abrogation of the treaty, this condi-
tion provides a lot better pretext than
the Soviets have needed on other occa-
sions.
I do not believe their argument
would be valid. Nor do I believe that
anyone here or in the administration
wishes to give them such a pretext.
But that is not the point. It is not wise
to provide such an opportunity.
In opposing this condition on juris-
prudential grounds, I hope no one mis-
understands my point. I do not have
any difficulty with conditions that
seek to perfect the treaty or which
otherwise prepare us for the signing of
the protocol of ratification. Such con-
ditions are consistent with the consti-
tutional role of the Senate. Rather my
problem is with conditions that are
not part of the treaty papers and
which are to take independent effect
after consent is given and after the
treaty is formally ratified by the sig-
natories. In my opinion, such condi-
tions have only the force of sense-of-
the-Senate resolutions.
If that is true, it might be asked why
I will not support it. The reason is
that the condition itself?apart from
the merits of the vexing question it
addresses?may be a source of mischief
insofar as it grants the Soviets a pre-
text for shirking its treaty obligation.
The question of how a treaty may be
interpreted is certainly worthy of
Senate consideration. But if the Sen-
ate's purpose is to set out a blueprint
which the executive must follow, this
should be accomplished by binding
law?by enacting a statute.
If it would be considering inconven-
ient to bring the House into the pic-
ture, then I might suggest that the
Senate and the President negotiate
the terms of an executive order. Since
the Senate and the President agree
that interpreting treaties is an execu-
tive function, an executive order
would be appropriate. Of course, it
would not have the permanence or
status of a statute.
Mr. President, I recognize that there
is very little law on the legal status of
conditions that are not part of the
treaty papers. In this body, there may
well be 100 views on the subject. It is
with some humility that I undertake
to state my thoughts, in view of the
respect I have for the Senators and
legal thinkers who may disagree.
I rise to speak because I believe that
the Constitution speaks plainly re-
garding our authority. There are but
three ways to make law. This condi-
tion is not any one of them.
The PRESIDING OFFICER. Who
yields time? Who yields time under
the time agreement?
The Senator from California.
Mr. WILSON. Mr. President, I would
ask unanimous consent that a call of
the quorum be undertaken without
that being charged to either side.
Mr. BYRD. I would object to that.
The PRESIDING OFFICER. Objec-
tion is heard.
Who yields time?
Mr. BYRD. I would be happy to
charge it equally to all sides if the
Senator would wish. Against all sides?
Mr. SPECTER. Mr. President,
rather than let the time lapse, there is
substantial time this Senator would
need, but I am reluctant to use my
time at this point. I spoke with the
Senator from Georgia, Mr. NUNN, who
said he expected to be on the lloor be-
tween 4:15 and 4:30, but rather than
let the time go to waste, if it will not
go against my 22 minutes, I will seek
the use of the time.
Not a bad alternative to having it
under the quorum call.
' The PRESIDING OFFICER. Who
yields time under the agreement? The
time allocated?the Senator from
Pennsylvania has 22 minutes remain-
ing. Do you seek to use the time?
? The Senator from California.
Mr. WILSON. Mr. President, I would
inquire how much time remains to all
parties?
The PRESIDING OFFICER. The
Senator from Pennsylvania has 22
minutes remaining. The Senator from
California has 16 minutes remaining.
The majority leader has 28 minutes re-
maining. That is all the remaining
time.
Mr. WILSON. Mr. President, owing
to the earlier generosity of the majori-
ty leader, I believe I have 10 minutes
personally?
The PRESIDING OFFICER. The
Chair will state to the Senator from
California that he has 6 minutes of his
original time allocated to him, plus 10
minutes from the majority leader for a
total of 16 minutes.
The Chair will state to the Senator
that If no one yields time, time will be
allocated and charged equally to those
Members who have time allocated to
them.
Mr. SPECTER. Well, Mr. President,
rather than sit here and do nothing.
The PRESIDING OFFICER. The
Senator from Pennsylvania.
Mr. SPECTER. I would direct a
question to the majority leader on my
time.
The PRESIDING OkViCER. The
Senator from Pennsylvania is recog-
nized.
Mr. SPECTER. But not the answer.
I would ask the distinguished major-
ity leader, as the sponsor. of this condi-
tion, whether he agrees with the state-
ment of Senator Nimm on hearings
before the Armed Services Committee
earlier this year, 1988, page 28 of the
record where Senator Numc says:
I want to make it clear that if the Soviet
Union disagrees with the reading of the
treaty being presented in these hearings by
our executive branch witnesses, then the
time for the Soviet Union to- speak out is
now, not after the Senate gives approval
and not several years down the line.
If the Soviets remain silent on points of
interpretation presented by the executive
branch witnesses then I believe the U.S.
Senate as well as our Government can rea-
sonably believe and contend that silence
connotes assent to those interpretations.
That is my own view.
How much time do I have left, Mr.
President?
The PRESIDING OFFICER. The
Senator from Pennsylvania has 20
minutes remaining.
Mr. SPECTER. I would ask the dis-
tinguished majority leader, on the in-
terpretation of the Byrd condition, if
the distinguished , majority leader
agrees ,with Senator Nurm's interpre-
tation of the law on treaty interpreta-
tion?
Mr. BYRD. Mr. President, I do not
answer on my time.
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
Shall I respond on the Senator's
time?
The PRESIDING OFFICER. The
Senator from Pennsylvania still has
the floor.
Mr. SPECTER. No, I do not yield
time for purpose of a response.
The PRESIDING OFFICER. The
Senator from Pennsylvania yields the
floor?
Mr. SPECTER. I do.
The PRESIDING OFFICER. The
Senator from Pennsylvania yields the
floor.
Who yields time?
Mr. WILSON. I yield 5 minutes to
the Senator from South Carolina.
The PRESIDING OFFICE. The
Senator from South Carolina, Senator
THERIVIONZ, is recogned for 5 min-
utes.
Mr. THURMOND. Mr. President, I
rise in opposition to the amendment
offered by the distinguished majority
leader. I recognize and congratulate
both the majority leader and the Re-
publican leader for the considerable
effort that has gone into the formula-
tion of this amendment to accommo-
date concerns that had been expressed
about the earlier Biden-Pell amend-
ment.
Nonetheless, Mr. President, I contin-
ue to hold to the belief, that I ex-
pressed the other day on the floor,
that any amendment along these lines
is unnecessary. The assurances provid-
ed by the administration with respect
to these issues are both appropriate
and adequate in my view.
Mr. President, I am concerned about
several implications of the amendment
that is now before the Senate.
My first concern is how we deal in
the future with contradictions that
may become apparent in the testimo-
ny a authoritative witnesses. During
the course of commfttee deliberations
on the treaty, one such potential con-
tradiction did arise, but was subse-
quently resolved. However, the record
is very long, and has only been scruti-
nized for consistency for those issues
that were of particular interest during
the committee reviews, such as the
future systems issue.
My second con elle Mr. President, is
with the lack of status afforded by the
amendment to the negotiating record.
It is my understanding that the nego-
tiating record was a critical contribu-
tor to our understanding: of several
issues that arose during committee
review of the treaty, including the
double negative issue that was taken
up several days ago.
Finally, and most importantly, Mr.
President, I am concerned that the
amendment as drafted puts the United
States in the position of being held In
accordance with United States law to
an interpretation to which the Soviet
side would not be held. Such a unilat-
eral treaty obligation seems to this
Senator to put us in exactly-the same
situation that was debated on the
floor of the Senate for several months
last summer in conjunction with the
ABM Treaty.
Mr. President, this amendment is at
best unnecessary, and at worst, raises
the potential for future concerns that
may jeopardize the best interests of
the United States.
Thank you, Mr. President.
The PRESIDING OFFICER. The
Senator yields the floor. Who yields
time?
The Senator from California.
Mr, WILSON. Mr. President, I would
inquire of my distinguished colleague
from Pennsylvania whether he is
ready to take the floor at this point?
Mr. SPECTER. Mr. President,
rather than allow the time to be
unused, may I ask again if my time re-
mains. Is it 20 minutes at this point?
The PRESIDING OFFICER. The
Senator from Pennsylvania has 19
minutes remaining.
Mr. SPECTER. Mr. President, as I
said earlier, there are a series of ques-
tions that I had intended to propound
to both Senator Nurui and Senator
BYRD. I am going to propound the
questions at this time because I be-
lieve they are important questions.
I cannot yield my time because I
have so little left. I think this illus-
trates the lank of wisdom of having
this kind of a time agreement. I have
asked the minority leader, the distin-
guished Senator from Kansas, Senator
DOLE; the request has been relayed to
the distinguished majority leader, Sen-
ator BYRD, for extra time so that we
can have response here, and I hope we
would have some extra time.
My questions for the sponsor of this
amendment, the distinguished Senator
from West Virginia, on the Byrd con-
dition, is whether Senator Bran?first,
I already asked him the question
about whether he agrees with Senator
NUNN'S interpretation that the Soviets
are bound by what goes on in the
United States ratification process.
I next ask Senator BYRD whether he
agrees with the three conditions of the
so-called Sofaer doctrine on reaching
an understanding of the Senate gener-
ally understood and clearly intended
and relied upon by the Senate, which
has been agreed upon by Senator
Nuinf in testimony, and whether or
not the proponents of the Byrd condi-
tion agree with the committee report
that the negotiating record is immate-
rial, where it disagrees with the under-
standing of the Senate.
I submit those are three important
questions which ought to be answered,
and I would like to have the time to
yield, but I simply do not. Can I in-
quire how much time of mine is re-
maining?
The PRESIDING OFFICER. The
Senator from Pe.nnsyIvania has 17
minutes remaining.
Mr. SPECTER. I thank the Chair.
The PRESIDING OFFICER. The
Senator from Pennsylvania yields the
floor. Who yields'time? The Chair will
state again that no one yields time, so
the time will be charged proportion-
S 6769
ately to the Members who control
time.
Mr. SPECTER. Mr. President, I ask
unanimous consent that I may use the
time without having it charged as my
time until someone seeks the floor.
Mr. KERRY. Objection.
The PRESIDING OFFICER. An ob-
jection is heard.
Mr. WILSON addressed the Chair.
The PRESIDING OFFICER. The
Senator from California.
Mr. WILSON. Mr. President, there
seems to be a little game called freez-
ing the puck underway here. I will
yield myself such time as I require.
The PR.p.;SWING 0.toVICER. The
Senator is recognized.
Mr. WILSON.. Mr. President, the
Byrd substitute to the Biden-Pell
amendment has no place on the INF
resolution of ratification. It is not nec-
essary. Indeed, it imperils some votes
for the treaty from Members who
have expressed publicly their desire to
vote for it, their intention to vote for
it.
Some have expressed such concern
about the lack of wisdom of this condi-
tion, that it may be decisive in chang-
ing their votes, so some of my col-
leagues have related to me. It may
very well be unconstitutional as a limi-
tation upon executive authority.
It is certainly counter to internation-
al law. Professor Henkin, who has
been much referred to today, ha ss as
the distinguished Senator from South
Carolina put it, come down on both
sides.
This debate is really about Senate
prerogatives and Senate ability to do
its job, Senate duties. Those who are
pushing the Byrd substitute to the
Biden-Pell amendment have expressed
a concern for Senate prerogatives.
Well they might, but the great irony
of their effort is that they are under-
mining the ability of the Senate to ac-
tually perform its responsibility, to do
its duty, to examine the record, al/ of
the record and not simply authorita-
tive representations.
The great irony, Mr. President, is
that those who are pursuing this
amendment, this condition, are in this
Instance prepared to detail wholesale
the representations, authoritative rep-
resentations of the executive.
My colleague from California has so
indicated. So has my colleague from
Michigan. They have said we do not
hold the documents; it is not our re-
sponsibility to look at the negotiating
record. They agree that we are not
precluded from this condition from
doing so. That is a question in itself,
but, my god, we should not be satisfied
with not being precluded. We ought to
prescribe unto ourselves a duty to
compare for consistency and for accu-
racy the negotiating record of what ac-
tually happened in Geneva as between
the negotiators on our side and the-
Soviet side and what is being present-
ed here.
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S 6770 CONGRESSIONAL RECORD ? SENATE
The great irony is that this morning
In the omnibus amendment, to which
there were no dissenting votes, there
was no opportunity, without resort to
the negotiating record, for the very
points that were included in that con-
dition attached to this resolution of
ratification to have ever been? discov-
ered.
So there is more than a little irony
in arguing about Senate prerogatives
and ignoring the Senate's responsibil-
ity to do its job.
I had been assured last night in the
negotiations, to which the majority
leader referred and to which we have
referred here today, that this Byrd
substitute for the Biden-Pell condition
does not settle the ABM interpreta-
tion dispute. That is quite true. It does
not. It leaves it unsettled.
It is also true that, as they have said,
It does not preclude resort to the nego-
tiating record. At least that is not
their intention: However, perhaps the
most dangerous thing about this, al-
ready hit upon by other speakers, is
that by implication, it prescribes the
basis for both international as well as
domestic obligations.
It is for that reason that it should,
in fact, go further than it does and de-
scribe a duty explicitly that we make
consistent not only the testimony of
administration witnesses with the
record of what the negotiators did in
Geneva, but we must do so so there
will be consistency between domestic
law and international obligations of
the United States under this treaty
whereas, in fact, by implication, in de-
fining common understanding, the
Byrd substitute for Biden-Pell makes
the same mistake as Biden-PelL
It does not really improve it. It does
somewhat, but not nearly enough be-
cause it does not say that the follow-
ing things comprise the basis for
common understanding in a way that
says that they are the exclusive, but it
does not similarly say including the
following but not limited to.
It says that the common under-
standing shall be the text of the
treaty, the provisions of the resolution
of ratification, and the authoritative
representations. It does not by impli-
cation, and certainly does not express-
ly say, included as the basis within the
definition of common understanding
that there shall be other competent
evidence, including first and foremost
the negotiating record.
Mr. President, the Biden-Pell
amendment had its origins in an effort
to try to dispose of the debate about
the interpretation ot the ABM Treaty.
It may very well be that wiser heads
have understood the necessity to pla-
cate Members concerned about that
debate and, for that reason, have
given repeated reassurances that this
will not preclude further consideration
of the question or settle the debate.
What it really amounts to in this
case, Mr. President, is INF medicine
far worse than the perceived ABM dis-
ease. What the Biden amendment did
and what the Byrd amendment does is
cut off the Senate's nose to spite
Ronald Reagan's face, and that is a
costly exercise.
If those who are concerned with
Senate prerogatives are truly con-
cerned with them, they need to be
concerned as well with the Senate's
ability to do the job. My friend from
Michigan says we do not have the doc-
uments. He is of sterner stuff than
that. Twice now he and I have both
demanded the documents, demanded
the negotiating records and, I dare
say, my friend and I will do so again in
the future if another treaty comes our
way that requires us to resolve ambi-
guities on the text or to go further
and do our job examining the negoti-
ating record and finding things which
are not apparent on the face of the
treaty or even apparent in the explicit
testimony of authoritative witnesses
on behalf of the administration. That
is what we did in this treaty. That is
how the Senate did its job.
The great irony of this debate, Mr.
President, is that we have done our
job in this instance, but this amend-
ment, this condition that would be at-
tached, by the Byrd substitute, to the
resolution of? ratification would, in
effect, prescribe a different course for
the future.
It would, in fact, if not preclude the
Senate from doing its job, at the very
least imply that our job is completed
when we simply listen passively to wit-
nesses and do not look behind their
testimony. That is precisely the prob-
lem in the ABM Treaty. Representa-
tions were made that were not only in
conflict with that of other administra-
tion witnesses, but that were flatly
contradicted by the negotiating
record.
To say that there was at least ambi-
guity is to understate the case. That is
what is wrong with the Byrd amend-
ment. It does not settle that question,
and it does something very dangerous.
By not specifically addressing itself to
the question of whether this binds us
only domestically, it by implication
states that the basis for the advice and
consent of the Senate to ratification of
the INF Treaty is a common under-
standing, and it by implication pro-
fesses to bind us both with respect to
domestic and to international obliga-
tions. It makes no distinction; it does
not call forth any different course of
action. It simply says that there is a
basis in common understanding that is
the condition upon which Senate
advise and consent to this treaty is
given.
Mr. President, how much time re-
mains?
The PRESIDING OFFICER. The
Senator has 2 minutes 15 seconds.
Mr. WILSON. Mr. President, let me
inquire if the Senator from Pennsylva-
nia is prepared to use some of his time
since evidently he is going to have to
ask rhetorical questions.
Mr. SPECTER. I have already asked
questions. They are not rhetorical. I
May 26, .1988
am waiting for responses. I do not
choose to use any more time at this
point.
Mr. McCLURE. Mr. President, will
the Senator from California yield to
me?
Mr. WILSON. I yield to the Senator
from Idaho.
Mr. McCLURE. Mr. President, I
thank the Senator for yielding.
I rise in strong opposition to the
amendment.
Mr. President, we have heard a lot
during the last 2 weeks about killer
amendments, and dilatory amend-
ments, and other dark and nasty
things lurking around like ghosts. Or
as one of my colleagues put it, like the
Loch Ness Monster. And I must con-
fess that I didn't know what people
were talking about. All I saw was a
group of amendments, some of which I
supported and some of which I op-
posed, that addressed important issues
associated with this treaty. And I had
just about stopped believing in the
Lock Ness Monster, when along came
this amendment, and I thought, well,
there goes a killer amendment.
Let me tell my colleagues who are
worried that those other amendments
would kill the treaty because the Sovi-
ets would refuse to accept them: this
amendment is sufficient reason, alone
to vote against this resolution and
may well persuade Senators to vote
Mr. President, the supporters of this
amendment have presented it as non-
partisan issue relating solely to the
INF Treaty before us, and not to the
highly partisan ABM Treaty interpre-
tation issue, which as my colleagues
remember kept the Senate tied up in
knots last summer.
That, my friends, is simply not true.
This amendment is clearly, transpar-
ently nothing more than another salvo
In the battle over the ABM Treaty.
The intention, pure and simple, is to
prejudice the Administration's inter-
pretation of that treaty and cripple
SDI. This amendment would affect all
treaties, not just the treaty at hand.
The Byrd amendment, and I quote, "is
based on the Treaty clause of the Con-
stitution." This is not some one-time
deal. This is an attempt to reinterpret
the Treaty clause to alter the consti-
tutional balance of power. It is an at-
tempt to arrogate to the Senate the
President's right to make, interpret,
and implement treaties. It is an uncon-
stitutional power-grab, pure and
simple. But in its application it may
well give a future administration the
opportunity to bind our country in
ways the other signatory nation is pa-
tently not bound to observe.
So much for the constitutional
theory. What would this amendment
have meant for the INF treaty in prac-
tice? Among other things, it would
have crippled the Senate's ability to
answer the questions over futuristic
systems. Because the negotiating
record would have been inadmissible
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
evidence in that debate. The Senate,
whose job it is to ratify treaties, would
have been forced to rely on the admin-
istration's testimony, which originally
held that these systems had been ad-
dressed and were covered under the
treaty.
But as we all know, the administra-
tion's authoritative testimony turned
out to be not so authoritative, and it
turned out these issues were never
even discussed. The Senate had to
send the State Department back to
the negotiating table to clear this
issue up. If we had not known that
these issues were never discussed, we
would not have been aware of the
need to send them back to the drawing
board. And the United States would
have ended up bound unilaterally to
something the Soviets never agreed to.
Here is another example of what
Biden-Pell-Byrd would have meant for
the INF Treaty. The so-called double-
negative in article VI paragraph 2 as
written is ambiguous and confusing.
Nevertheless, we know that the Sovi-
ets do understand this provision in the
same way we do, and that they in fact
expressed concern about the sloppy
way the language was drafted. How do
we know this? The negotiating record.
Mr. President, far from enhancing
the Senate's ability to properly consid-
er treaties, this amendment would
make it harder, by excluding a vital
body of evidence. This could have dan-
gerous results. The essence of a treaty,
that which is agreed upon between the
two parties, is not necessarily to be
found in communications between the
executive and legislative branches of
one of those parties. It is to be found
in the record of what was discussed,
what was offered, what was rejected
and what was accepted. By seeking to
exclude this body of evidence, the
amendment represents an abdication
of the Senate's responsibilities.
I urge its defeat.
Mr. President, one of the things that
disturbs me about the proposal we
have is that while some may argue,
and indeed it can be argued, that it is
an attempt to tilt the balance to the
Senate and deprive the administration
the opportunity to interpret treaties,
it may well in the future work in ex-
actly the opposite manner by allowing
an administration to misrepresent a
treaty to the Senate in ways which
give the administration more author-
ity to create a different kind of treaty
than was agreed upon between the
parties and mislead the Senate in ways
that bind the United States unilateral-
ly without binding the other signatory
to the treaty.
I thank the Senator for yielding.
The PRESIDING OFFICER. The
Senator from California has 1 minute
remaining.
Mr. WILSON. Mr. President, be-
cause this does not prescribe the kind
of duty that the Senate is in fact
under as a matter of constitutional
mandate, because it suggests that
there may be a way to perform that
responsibility with less than the care
given in the course of the INF Treaty
and because it implies that we will be
bound both internationally and do-
mestically, at the appropriate time I
will move to table the Byrd substitute
to the Biden-Pell amendment.
The PRESIDING OFFICER. The
time of the Senator from California
has expired. Who yields time?
Mr. BYRD. Mr. President, I yield 5
minutes to the distinguished Senator
from Indiana, Mr. LUGAR.
The PRESIDING OFFICER. The
Senator from Indiana [Mr. LUGAR] is
recognized for 5 minutes.
Mr. LUGAR. Mr. President, I thank
the distinguished majority leader.
I rise to ask Senators to vote for the
Byrd substitute,. I do so having partici-
pated in the discussions with the dis-
tinguished majority leader, with col-
leagues on both sides of the aisle rep-
resenting the Foreign Relations,
Armed Services, and Intelligence Com-
mittees, and of course, our Republican
leader, Senator DOLE.
I would simply comment, Mr. Presi-
dent, as is I think well known from the
letters that I have written to col-
leagues and public statements that I
have made, I hoped this particular
amendment would not be necessary on
the INF Treaty. Indeed, I described
the entire operation as a mistake, in
my judgment. I suspect that each one
of us tries to determine what is rela-
tive and what is important, and it is
apparent to me that a number of col-
leagues believe this matter is very im-
portant. Indeed, the majority leader
has pointed out that in his judgment
the role of the Senate in the treaty-
making process is the most important
factor superseding even perhaps the
treaty we are discussing. ?
I would say, Mr. President, that my
judgment about these matters is some-
what reversed. I come to a conclusion
of support for this amendment be-
cause I believe the INF Treaty is very
important, and it is apparent to me
that the passage of this treaty would
have been difficult within the time
period which we are talking about
without accommodation of colleagues
listening to one another.
Having said that, Mr. President, let
me simply comment that the amend-
ment as it has been worked out in a bi-
partisan way does recognize various ar-
guments of both Democrats and Re-
publicans, both sides of the aisle. I
think a reading of that shows through
recognition that colleagues were lis-
tening to each other and working with
each other. But I would point out that
the Byrd amendment speaks only to
relations between the two branches,
that is, the Senate and the President.
As was clear in our conversations,
the Supreme Court is entirely outside
of this agreement, and as other col-
leagues have pointed out in due course
the Supreme Court may very well rule
quite apart from the general descrip-
tion of events which we give to each
other today on the Byrd amendment.
S 6771
I point out, furthermore, that the
checks and balances of our Govern-
ment still work, and I appreciate the
frustration of many colleagues on the
other side of the aisle who feel that
the current administration has at-
tempted to reinterpret a treaty. In my
own judgment, the current administra-
tion did not attempt to reinterpret a
treaty. The ambiguity at least in the
ABM Treaty has been cited by the ad-
ministration as a basis for interpreta-
tion. But let us take the worst case,
that the current administration delib-
erately took a look at a proposition
that both the Senate and the Presi-
dent had looked at and went entirely
in a different direction. In truth, Mr.
President, we have in front of us the
actual political history of the past 2
years, and that is the majority party
In the Senate has not agreed with the
interpretation of the President of the
United States of how we ought to de-
velop the SDI program, and as a result
that program has either been stymied
or has been tailored to fit the will of
the majority.
Now, I have not agreed with the tai-
loring or the stymieing, but neverthe-
less, I recognize that in our political
system this is the way it works. In
short, even if a President should at-
tempt to reinterpret a treaty, the
checks and balances of the legislative-
executive relationship check any exer-
cise of arbitrary judgment or arbitrary
authority.
Therefore, Mr. President, I saw no
particular' reason to try to pin all of
this down 15 different ways. It seems
to me the system works adequately as
it stands and that the Supreme Court
finally will offer judgments in any
event quite apart from what we are
saying to each other today.
But that argument cuts both ways.
If my argument is correct that what
we are doing today is redundant or
maybe even irrelevant, others could
argue, if that be so, why worry about
it?
In my judgment, Mr. President, we
finally come down to a point in which
the amendment we have fashioned,
whether it is redundant or irrelevant,
does at least recognize several points
,of view which I think have validity.
The PRESIDING OFFIVER. The
time of the Senator from Indiana has
expired.
Mr. LUGAR. I thank the Chair.
The PRESIDING OFFICER. Who
yields time?
Mr. KERRY. Mr. President, will the
distinguished majcirity leader yield
time?
Mr. BYRD. I yield 5 minutes to the
distinguished Senator. ?
The PRESIDING OFFICER. The
Senator from Massachusetts, Mr.
KERRY, is recognized for 5 minutes.
Mr. KERRY. I thank the distin-
guished majority leader.
Mr. President, I would agree with
certainly part of the comments from
the Senator from Indiana. It is unfor-
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S 6772 CONGRESSIONAL RECORD ? SENATE
tunate that we are here discussing this
particular amendment. But I would
assert that it is vital to the treaty
process that this amendment be
passed, and that the Senate assert its
constitutional prerogatives.
Mr. President, article VI of the Con-
stitution is very clear. It says that:
. . . all Treaties made, or which shall be
made, under the Authority of the United
States, shall be the supreme Law of the
Land, . . .
Article II say the President must
take care that the laws be faithfully
executed. And in another article, it
says that a treaty can be made only
with the advice and consent of the
Senate.
So it is only with our advice and con-
sent when we interpret what a treaty
means that a treaty can become the
supreme law of the land, which the
President must carry out.
In the course of hearings I had an
exchange with Judge Sofaer which I
think is relevant to why this is so nec-
essary. I asked the judge what was put
in front of the Senate in 1972. And he
said in referring to comments he made
that the executive could tell the
Senate what a treaty meant. And I
said to Judge Sofaer:
. . . And the Executive had an opportuni-
ty to tell the Senate how to interpret the
treaty of 1972, didn't it?
Judge SOFAER. Yes.
Senator KERRY. And it did so by sending
specifically the treaty itself, document one,
it sent the agreed statements; correct?
Judge SOFAER. Yes.
Senator KERRY. It sent the unilateral
statements.
Judge SOFAER. [Nods affirmatively.]
Senator KERRY. It sent the letter of trans-
mittal.
Judge SOFAER. [Nods affirmatively.]
Senator KERRY. And it sent the Rogers
report to the President.
Judge SOFAER. Precisely.
Senator KERRY. Those are the items that
were before the U.S. Senate. That was the
communication of the Executive to tell us
what the treaty meant. Correct?
? Judge SOFAER. Yes, sir.
The Senate then proceeded, based
only on those items, to interpret that
treaty and to decide what it meant.
As the distinguished Senator from
Georgia has said very clearly in a
statement that is part of the record,
all of the Senators, including Senator
BUCKLEY who voted against the treaty
precisely because it did not do what he
wanted it to do, interpreted the treaty
on the basis of what was in front of
them.
Thirteen years later a different
? President, who had nothing to do with
that negotiating process, comes before
us and says, wait a minute, the treaty
does not mean what the Senate be-
lieved it meant in 1972. It means some-
thing that is sent out in a secret docu-
ment that was never put in front of
you, which you never saw, which was
never even collected as a document in
one entity, and that is what it means
today.
Now, if that were true, any President
at any time could withhold any docu-
ment, call it a secret, come back years
later, and say, when you voted to say
the treaty meant X, it did not mean X
at all, it meant Y. If that were true,
Mr. President, then the entire Consti-
tution would be turned topsy-turvy. It
would be meaningless to say that this
Is the supreme law of the land, passed
only with the advice and consent of
the Senate, meaning what the Senate
interpreted it to mean at the time it
passed it.
So it is too bad that we are here
today, Mr. President. But we are here
today not to resolve the ABM issue,
and this does not. We are here today
simply to assert that this treaty when
we pass it will mean what the record
of debate and what we have interpret-
ed it to mean based on,what the exec-
utive told us that it means in 1988, not
when someone comes forth and says
what it means years hence.
And the Byrd change to the Pell-
Biden amendment sets forth nothing
except the law. It sets forth what is
precisely the constitutional responsi-
bility of this institution. And it says
that we will not agree or adopt, the
United States will not agree or adopt,
an interpretation that is different
from what we believe this treaty to
mean today based on the understand-
ing that is put in front of us by the
text and based on the authoritative
representations provided by the execu-
tive itself.
I cannot think of a more important
statement for us to make though an
unfortunate statement for us to have
to make. But it is vital to the meaning
of this dtreaty and it is far, far more
vital as the majority leader has assert-
ed to the Senate process and to the
constitutional process itself.
I yield such time back to the leaders
as may remain.
The PRESIDING OFFICE.R. The
time of the Senator from Massachu-
setts has expired. Who yields time?
The Chair will announce that the ma-
jority leader has 17 minutes remaining
and that the Senator from Pennsylva-
nia has 17 minutes remaining.
Who yields time?
Mr. SPECTER. Mr. President,
rather than have time wasted, I ask
unanimous consent that half of the
, time I use be charged to the other
side.
Mr. BYRD. Mr. President, I object.
The PRESIDING OFFICER. Objec-
tion is heard.
The Chair will announce the time, if
no one yields time, will be allocated
proportionately to the two Members
that have the time remaining.
Mr. BYRD. Mr. President, I believe I
have 17 minutes left. I want to save 12
minutes of that for Mr. NUNN. I had
intended to save myself 5. I yield 3
minutes of my 5 to Mr. SIMON.
The PRESIDING OFFICER. The
Senator from Illinois, Senator &mom
Is recognized.
Mr. SIMON. I thank the distin-
guished minority leader and my col-
leagues in the Senate.
May 26, 1988
I rise in support of this amendment,
and I think if we move away from the
principles of the Biden amendment?
and this perfecting amendment does
not?we are really getting on thin ice.
If we can massively reinterpret con-
trary to the common understanding of
a treaty, then a succeeding administra-
tion that will be in here in another 7
months can reinterpret that. We will
not know where we are. It is inviting
all kinds of problems. And then there
Is a second consideration that I think
should not be lost in this body, and
that is if we can reinterpret contrary
to the common understanding, then
there is nothing to prevent the Soviets
or any other country with whom we
have a treaty from massively reinter-
preting.
I think it is simple prudence that we
stick with the. basics of the Biden
amendment and the perfecting amend-
ment offered by the distinguished ma-
jority leader.
There will be things that are ambig-
uous from time to time. And there we
may have some problems, or there will
be interpretations that we may dis-
agree on how to interpret. But where
there is that clear common under-
standing as in the ABM Treaty, we
cannot suddenly unilaterally and uni-
laterally within a single administra-
tion decide we are going to take off in
a different direction. I think we are
getting on really thin ice, and we are
jeopardizing the whole treaty process
if we do that.
I strongly support the amendment
of my distinguished majority leader,
and the thrust of the Biden amend-
ment. I think it is a safeguard for all
of us.
The PRESIDING OFFICER. The
time of the Senator from Illinois has
expired.
Who yields time?
The Chair will announce that the
majority leader has 14 minutes re-
maining, and the Senator from Penn-
sylvania has 16 minutes 48 seconds re-
maining.
Mr. BYRD. Mr. President, I am sure
the distinguished Senator from Penn-
sylvania wants the last word. I am per-
fectly willing for him to have it. I am
going to use 2 minutes of my own
time. The remaining time will be for
Mr. Numr. I hope he will be on the
floor and ready to utilize it.
Mr. President, let me summarize the
intent and the purpose of the amend-
ment in closing. It binds the President
to the interpretation of the treaty
which the Senate and the President
share at the time that the Senate
gives its advice and consent to the
treaty. The amendment makes clear
the bases on which that shared under-
standing are: first, the text of the
treaty and the provisions of the reso-
lution of ratification; second, the au-
thoritative representations of the ad-
ministration regarding the meaning of
the treaty.
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CONGRESSIONAL RECORD SENATE
The amendment states that no rein-
terpretation can occur without the
Senate's proper participation. The
amendment acknowledges that if
future cases arrive concerning the in-
terpretation of the meaning of a provi-
sion of the treaty where a shared un-
derstanding has not been reached,
then applicable U.S. law will apply.
This provision does not refer to ambi-
guities or disagreements but to new
issues that may arise in the future
which we have not anticipated at the
present time.
The amendment protects and rein-
forces the role of the Senate in the
treatymaking process. It ensures that
the representations of the executive
branch regarding the meaning of the
treaty are binding on future adminis-
trations. In other words, reinterpreta-
tion by a future President without the
Senate's consent will be impossible.
In adopting this amendment, we will
not -only be strengthening the role of
the Senate and its institutional re-
sponsibilities; we also will be strength-
ening this treaty and strengthening
the United States in its dealings in
future negotiations. It will be clear
that the U.S. Senate as a whole, the
President, and Congress understand
what the treaty means and agree to
bind the United States to the obliga-
tions which the treaty entails. This is
as it should be, and this amendment
deserves the support of all Senators.
The PRESIDING OFFICER. The
time of the majority leader, allocated
to himself, has expired.
Who yields time?
Mr. BYRD. Mr. President, does the
distinguished Senator from Georgia
wish me to yield the remaining time to
him?
Mr. NUNN. I will try to use less than
that.
Mr. BYRD. I yield the remaining
time to Mr. Nunn.
The PRESIDING OFFICER. The
Senator from Georgia is recognized for
11? minutes.
Mr. NUNN. Mr. President, I rise in
support of the Byrd amendment on
treaty interpretation. It is most appro-
priate this amendment bears the name
of the majority leader. Over the last 3
years, when the Senate's institutional
role has been under serious challenge,
he has steadfastly preserved and pro-
tected the constitutional prerogatives
of this body. ?
It is also fitting that this amend-
ment has strong bipartisan support.
Senators DOLE, LUGAR, WARNER, and
COHEN have ensured that this historic
provision will be viewed as represent-
ing the broad views of the Senate as
an institution. We owe a particular
debt of gratitude to Senator COHEN,
who fashioned the language that met
the bipartisan needs of the Senate.
I would also like to commend the
Foreign Relations Committee for in-
cluding in the resolution of ratifica-
tion a provision to ensure that the
Senate's consent to the INF Treaty is
conditioned upon agreement by the
President that the treaty we are re-
viewing today will be respected by the
executive branch in the future. I
would like to pay special tribute to
Senator BIDEN for his thoughtful lead-
ership on this issue, to Senators PELL,
CRANSTON, and SARBANES for carrying
on this effort during Senator BIDEN'S
illness, and to Senators HELMS and
MIIRKOWSKI for their role in ensuring
bipartisan support in the Foreign Re-
lations Committee.
ORIGINS OF THE TREATY INTERPRETATION
? CONTROVERSY
The necessity for this provision
stems from the effort by the State De-
partment's legal advisor, Judge Abra-
ham Sofaer, to radically alter the rela-
tionship between the Senate and the
President in the treatymaking process.
Under the Constitution, the Presi-
dent makes treaties "by and with the
advice and consent of the Senate, pro-
vided two-thirds of the Senators
present concur." Hamilton, in the Fed-
eralist (No. 75) clearly illustrated the
intent of the framers that treatymak-
ing be a shared power between the
Senate and the President, based on
mutual trust:
The power, in question seems. . . to form
a distinct department, and to belong, prop-
erly, neither to the legislative nor the exec-
utive. The qualities elsewhere detailed as in-
dispensible in the management of foreign
negotiations, point out the Executive as the
most fit agent in those transactions; while
the vast importance of the trust, and the
operation of treaties as laws, plead strongly
for the participation of the whole or a por-
tion of the legislative body in the office of
making them.
Because the Senate is an equal part-
ner with the President in the treaty-
making process, we have a direct, con-
stitutional interest in ensuring that
treaties are accurately presented and
faithfully upheld. The executive
branch, however, has challenged the
Senate's role by inventing a novel
theory?that the President has the
power to reinterpret treaties and
change obligations that were clearly
understood and accepted by the
Senate at the time of ratification.
We first encountered this doctrine in
1985 during hearings before the
Senate Armed Services Committee.
Judge Sofaer was asked if he agreed
"that the purpose of the Senate's ex-
tensive ratification hearings ?on the
ABM Treaty was to clarify ambiguities
of interpretation." In his response, he
argued that: "Although this process
may have helped answer questions in
particular Senators' minds, it could
not result in authoritative clarifica-
tions of any ambiguities in the treaty,
becauie statements made during the
hearings were unilateral." In other
words, because the testimony on the
treaty was not offered in a joint
United States-Soviet forum, Judge
Sofaer viewed it as nothing more than
interesting information which, could
be freely disregarded by the exectuive
branch in the future.
Judge "Sofaer expanded his assault
on the role of the Senate in March
S 6773
1987 when he told the Foreign Rela-
tions Committee:
When (the Senate] gives its advice and
consent to a treaty, it Is to the treaty that
was made, irrespective of the explanations it
Is provided.
Under this version Of the Sofaer doc-
trine, the executive branch could treat
prior testimony to the Senate as irrele-
vant. Indeed, under Judge Sofaer's ap-
proach, the executive branch is free to
mislead the Senate as to the meaning
of a treaty simply because the stet-
ments in ratification hearings are
"unilateral."
PROBLEMS POSED BY THE SOFAER DOCTRINE FOR
THE SENATE'S CONSIDERATION OF THE INF
TREATY
In a letter to the President last Sep-
tember, I noted the grave implications
of the Sofaer doctrine for the Senate's
consideration of the INF Treaty:
In effect, the Sofaer doctrine holds that if
the Senate is misinformed by Executive
Branch officials as to the meaning of a pro-
posed treaty, that is simply too bad. Judge
Sofaer has put the Senate on notice that if
Congress relies upon the testimony of your
Administration as to the meaning of an INF
treaty, it will be at its own risk ? ? *.
The effect of the Sofaer doctrine for
the INF Treaty in particular and the
treaty making process in general
would have been disastrous. Because
treaties are the supreme law of the
land, the Sofaer doctrine?if not repu-
diated?would compel the Senate to
incorporate into its resolution of rati-
fication on every treaty and amend-
ment for every explanation given by
an executive branch official lest it be
disavowed as "unilateral" after ratifi-
cation. Treaties so laden would sink of
their own weight. This would be very
damaging, not only to the Senate but
also, more important, in the long run,
to the Presidency itself, in the conduct
of foreign policy. You cannot conduct
foreign policy through treaties if these
are the rules of the game.
THE AGREEMENT WITH SECRETARY SHULTZ
In an effort to expedite consider-
ation of the INF Treaty, Senators
BYRD, PEEL, BOREN, and I worked with
Secretary Shultz to address the Treaty
interpretation issue. The Secretary, in
a letter dated February 9, 1988, as-
sured us that?
All INF testimony of executive branch
witnesses, within their authorized scope, is
authoritative. We will inform the relevant
committee of any instance in which a wit-
ness' testimony is not authoritative in any
respect.
Administration testimony and materials
for the record can be regarded as authorita-
tive, as described above, without the need
for the Senate to incorporate them in its
resolution of ratification.
The Reagan administration will in no way
depart from the INF Treaty as we are pre-
senting it to the Senate. '
THE ADMINISTRATION CASTS DOUBT UPON THE
SHULTZ AGREEMENT
We began our hearings on the as-
sumption that the administration was
prepared to agree that the executive
branch would be bound by the author-
itative testimony of its witnesses. As
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S 6774 CONGRESSIONAL RECORD ? SENATE
our hearings drew to a close, however,
the administration undermined our
confidence in that assumption, in a
letter from the counsel to the Presi-
dent, Arthur B. Culvahouse, Jr. The
letter suggested that it would be
wrong to treat testimony as authorita-
tive if it is received from officials
below the level of Secretary of State
or if it is addressed to trivial or unim-
portant issues. The Culvahouse letter
would have had the effect of leaving
the executive in the future with the
freedom to reinterpret the INF Treaty
by claiming that the administration's
testimony only addressed a trival or
unimportant issue.
The Colvahouse letter also suggested
that the administration testimony
would not be binding unless "the
Senate as a whole" asserted a view on
the subject of the testimony. This
completely undermined the assurance
from Secretary Shultz that the Senate
need not incorporate administration
testimony in its resolution of ratifica-
tion, because the only way that "the
Senate as a whole" can assert a view is
to attach a condition on the resolution
of ratification.
In addition, - the Culvahouse letter
implied that the Shultz letter was in-
tended merely to serve as an expedient
means of dealing with the INF Treaty
and that the commitments by Secre-
tary Shultz would apply only to the
Reagan administrtion. By denying
that the Shultz letter had any consti-
tutional foundation, the Culvahouse
letter would have served as a invita-
tion for a future administration to 'dis-
avow the Shultz assurances at the ear-
liest opportunity.
Finally, Mr. Culvahouse stated that
the President could only be bound by
testimony that was "generally under-
stood, clearly intended and relied upon
by the Senate." As the New York
Times noted in an editorial: "Since it
is hard to !mow what this mumbo-
jumbo means, Presidents would be
free to do with treaties as they wish."
(May 5, 1988).
Mr. Culvahouse issued a subsequent
letter which asserted that there were
no conflicts between his letter and the
assurances we received from Secretary
Shultz. This simply underscored our
concern that the commitment from
Secretary Shultz would expire next
January, leaving future administra-
tions free to reinterpret the INF
Treaty and give it a meaning contrary
to the interpretations presented to the
Senate by the Reagan administration.
In the report of the Armed Services
Committee on the INF Treaty, we
noted the problems presented by the
Culvahouse letter and said: "If the
matter is not satisfactorily resolved,
Members of the Committee may find
it necessary to offer appropriate meas-
ures during consideration of the
Treaty by the Senate, including under-
standings or amendments to the
Treaty."
THE ADOPTION OF THE EIDEN CONDITION AND
ITS BENEFICIAL EFFECT ?IN EXPEDITING
SENATE CONSIDERATION OF THE TREATY
Recognizing the serious difficulties
that the Sofaer doctrine would present
for the ratification process, the For-
eign Relations Committee?under the
guidance of Senator Pzia., with the
leadership of Senator BIDEN, Senator
SARBANES, and others?wisely added a
treaty interpretation condition to its
resolution of ratification.
As we noted in the report of the
Armed Services Committee on the
treaty: "All Administration testimony
and material submitted for the record
have been regarded by the Committee
as significant, and will form an essen-
tial element of the body of evidence
before the Senate as it determines
whether to give its consent to the INF
treaty." Because the Foreign Rela-
tions Committee included a treaty in-
terpretation condition on its resolu-
tion of ratification, there has been no
need to clutter the resolution with
Issues satisfactorily addressed by the
administration in its testimony before
the Senate.
My approach to the ratification
debate would have been much differ-
ent had the Foreign Relations Com-
mittee not included the treaty inter-
pretation condition in its resolution of
ratification. Rather than signing a clo-
ture petition, I would have vigorously
opposed cloture until every aspect of
the administration's testimony had
been incorporated in the resolution.
This would have required extensive
floor debates on both the form and
content of amendments governing?
the effect of article XIV on assist-
ance to our allies;
the impact of the double negative in
article VI on interchangeable stages;
the definition of range of new type
of INF missiles;
the GLCM range definition;
the relationship between the treaty
and Pershing IA missiles;
the ability of the parties to make
technical changes to the protocols
without using the treaty's formal
amendment procedures;
the definition of "force majeure" for
purposes of canceling an inspection;
the inspection of SS-20 cannisters
prior to elimination;
and literally hundreds of other
Issues raised by the members during
our hearings.
If the Foreign Relations Committee
had not recommended a treaty inter-
pretation condition, there would have
been hundreds of issues we would have
had to incorporate on the floor of the
Senate, indeed, rather than attempt-
ing to complete the INF Treaty debate
this week, we would be planning for an
exhaustive debate throughout the
summer.
THE IMPORTANCE OF RETAINING A TREATY IN-
TERPRETATION CONDITION ON THE RESOLU-
TION OF RATIFICATION
Now that the treaty interpretation
condition has performed its service
and brought us to the point where
May 26, 1988
timely Senate consent is virtually as-
sured, there are some who have sug-
gested that we should strip it from the
resolution of ratification and rely on
the good faith of the executive
branch. Should anyone doubt that the
Sofaer doctrine is alive and well, they
need only consider the position that
the executive branch has taken in a
case entitled Rainbow Navigation, Inc.
versus Department of the Navy, decid-
ed only last week in the District Court
for the District of Columbia.
The Rainbow Navigation case in-
volved a 1986 treaty between the
United States and Iceland regarding
allocation of shipping rights. An
American carrier, Rainbow Naviga-
tion, alleged that the Navy planned to
administer the rights in a manner that
would prejudice the interests of Amer-
ican shipping protected by the treaty,
and a preliminary injunction was
granted by Judge Harold Greene.
In the course of his opinion, Judge
Greene noted that the administration
had expressly testified on the issue in
question:
Perhaps even more significant than the
treaty language are the representations
made by Sxecutive Branch officials to the
United States Senate in connection with the
ratification proceedings. These statements
? ? * clearly support the interpretation that
rights would vest without further legisla-
tion, for the officials represented to the
Senate that if ratified, the treaty would pro-
tect the existing U.S. flag presence on the
United States-Iceland route.
Judge Greene noted that during the
litigation, the administration "dis-
avowed in court the representations
made by the Navy and the Depart-
ment of State to the Senate during
treaty ratification proceedings as
merely 'precatory' and 'nonbinding'"
When you tell the court that your
testimony before the Senate Foreign
Relations Committee on a treaty is
merely precatory and nonbinding, you
have indeed undermined not only the
Senate as an institution but the whole
treaty ratification process as set forth
In the U.S. Constitution. So this is not
a trivial matter.
The executive branch's position in
the Rainbow Navigation case illus-
trates very well the administration's
utter contempt for the ratification
process.
? This was not an ancient treaty or an
agreement negotiated by a different
administration. This was a case in
which the current administration
found it convenient to disavow its own
testimony less than 2 years after it
was presented to the Senate.
What is particularly damning about
the Rainbow Navigation case is the
fact that the administration's testimo-
ny to the Senate on the Iceland treaty
was, in the now-famous words of the
Culvahouse letter, "clearly intended,
generally understood, and relied upon
by the Senate in its advice and consent
to ratification" and hence binding on
the President "as a matter of domestic
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May 26, 1988- CONGRESSIONAL RECORD ? SENATE
law." As Judge Greene noted in his
opinion:
Relying on these representations, the
Senate Foreign Relations Committee recom-
mended that the Senate ratify the treaty.
In fact, the committee stated in its report to
the full Senate that advice and consent
were being conditioned upon ? * ? assur-
ances given by the Departments of State
and Defense ? ? *.
By adopting a position in the Rain-
bow Navigation case that deviates even
from the statements made by the ad-
ministration in the Culvahouse, letter,
the administration has made it very
clear to us that we obviously cannot
rely on letters or memos as the basis
for precluding reinterpretation of the
INF Treaty by a future administra-
tion.
This Justice Department simply has
no sense of shame. At the very height
of the controversy over treaty inter-
pretation, it has had no compunction
about telling a Federal court that
when the executive branch represents
the meaning of a treaty to the Senate,
it can say whatever it wants and then
disavow it shortly after ratification.
Without a treaty interpretation provi-
sion, we have nothing to prevent the
executive branch from walking away
from its INF testimony in less than a
year. It is essential that we condition
our consent to the treaty upon the
agreement of the executive branch to
abide by the meaning of the treaty as
presented to us in our hearings.
Without a treaty interpretation pro-
vision, we have nothing to prevent the
executive branch from walking away
from its testimony on INF in less than
a year. I do not think that is going to
happen, but certainly this provision
would ensure that it does not happen.
In the future this amendment,
which has bipartisan support, will be
deemed to have set forth not a new
law, not something that is new, not a
new constitutional principle, but
rather a reaffirmation of what the law
of the land and the Constitution of
the United States have provided for all
of these years.
This is not a new departure. It is
really unfortunate that we are even
having to deal with it because it is so
clearly based on history, based on the
U.S. Constitution, based on the laws of
the land, based on the role of the
Senate as an institution, and based on
pure common sense and comity be-
tween the executive branch and the
Senate as an institution.
THE BYRD AMENDMENT
The Byrd amendment is consistent
with the condition recommended by
the Foreign Relations Committee. The
committee, in Its report, went to great
lengths to state that the condition was
not intended "to be dispositive on the
issue of ABM Treaty interpretation."
While the Byrd amendment does not
resolve the ABM Treaty issue, it af-
firms enduring constitutional princi-
ples which apply to the interpretation
of all treaties, including the ABM
Treaty. I understand that differences
may persist as to factual issue of ambi-
guity as to the text, ratification
debate, and negotiating history of the
ABM Treaty. But this amendment re-
pudiates the Sofaer it clear that the
executive branch is bound by authori-
tative representations as to the mean-
ing of a treaty, and that such meaning
cannot be changed by resort to the ne-
gotiating record or otherwise without
the approval of the Congress through
a subsequent statute or treaty.
The Byrd amendment must be un-
derstood in the following context:
All executive branch testimony is re-
garded by the Senate as important to
its consent.
The negotiating documents provided
to the Senate have not been presented
in such a way that they constitute rep-
resentations by the executive branch
as to the meaning of the treaty.
The Senate has relied on executive
branch representations in the hear-
ings on the treaty, and has therefore
deemed it unnecessary to make a de-
tailed review of the negotiating docu-
ments or to attach to the resolution of
ratification understandings, amend-
ments, or reservations embodying all
such testimony.
The Senate reserves the right to
obtain any element of the negotiating
history necessarS, to meet the consitu-
tional obligations of the Senate should
an issue arise as to treaty interpreta-
tion involving the President's reliance
On the negotiating history.
Nothing in the treaty interpretation
condition shall be construed to imply,
with respect to any prior or subse-
quent treaty, that the President can
interpret such treaty in a manner con-
trary to or inconsistent with the mean-
ing of the treaty presented to the
Senate, regardless of whether such a
condition was placed in the resolution
of ratification.
The treaty interpretation condition
provides a sensible approach to a criti-
cal problem. Newsday, in an editorial
on May 23, observed that this issue is
"central to our constitutional system
? ? s. The Constitution says treaty
making is a shared responsibility. The
* ? ? condition simply says that the
executive branch cannot decide by
Itself to reinterpret the INF Treaty."
According to the Association of the
Bar of the City of New York, the prin-
ciples set forth in the treaty interpre-
tation condition "are fundamental to
our constitutional scheme and cannot
reasonably be questioned." By includ-
ing the treaty interpretation condition
on the resolution of ratification, we
will confirm the constitutional signifi-
cance of the Senate's proceedings in
the ratification process, thereby ensur-
ing that this treaty will be respected
by the executive branch in the future.
Mr. President, I know the time is
precious here at this hour so I reserve
the remainder of my time.
Mr. BUMPERS. Is the Senator re-
serving the remainder of his time?
Mr. NUNN. Yes. I will be glad to
yield to the Senator from Arkansas.
S 6775
The PRESIDING OFFICER. The
Senator from Arkansas.
Mr. BUMPERS. Does the majority
leader have any time remaining?
Mr. NUNN. I will yield the floor.
The time is under control of the ma-
jority leader.
Mr. BYRD. I yield the remaining
time to Mr. BUMPERS. ?
The PRESIDING OFFICER. The
Senator from Arkansas is recognized'
for 2 minutes.
Mr. BUMPERS. Mr. President, actu-
ally the Senator from Georgia in his
summation just now said what I
wanted to say and that is that we are
talking as much about common sense
here as we are international law and
treaty interpretations and constitu-
tional law.
I want to say that it is an absolute
mystery to me why we are here. We
are here for a simple reason. That is
Judge Sofaer was told to find a loop-
hole of some kind that will allow us to
test in violation of what we believe in
the preceeding 15 years was the ABM
Treaty and to give the President on
the Sofaer doctrine the right to liter-
ally lie to the U,S. Senate and say,
"Just because I said it does not make
It so" is offensive to me.
How can you expect nations like the
Soviet Union to negotiate with us? No
self-respecting nation is going to nego-
tiate with you seriously when you
have a negotiating record, when you
have a clear understanding of the
clear intent of a treaty and you can
come back 15 years later for whatever
reason because you want to test SDI
or some other reason in the future and
literally unilaterally abrogate a
solemn compact.
It is offensive to me as a Senator.
The PRESIDING OFFICER. All
time has expired.
Mr. BUMPERS. I thank the majori-
ty leader for yielding.
? The PRESIDING OFFICER (Mr.
BURDICK). The Senator from Pennsyl-
vania.
Mr. SPECTER. Mr. President, will
the Chair confirm that I have 17 min-
utes remaining?
The PRESIDING OFFICER. Six-
teen minutes and 48 seconds.
Mr. SPECTER. I thank the Chair.
Mr. President, I ask the distin-
guished Senator from Georgia [Mr.
NUNN] to respond to a few questions,
but before proceeding, the distin-
guished Senator from Georgia made a
reference to the Rainbow navigation
case and it was referred to earlier.
Part of it was placed in the RECORD.
I ask unanimous consent at this
point thatlhe full text of the opinion
be printed in the RECORD.
There being no objection, the full
text of the opinion was ordered to be
printed in the RECORD, as follows:
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S 6776 CONGRESSIONAL RECORD ? SENATE
[Civil Action No. 88-0992]
RAINBOW NAVIGATION, INC., PLAINTIFF, V. DE-
PARTMENT OF THE NAVY, ET AL., DEFENDANTS
OPINION
This is the third time that these parties
have been before the Court with respect to
similar controversies.'
In October 1985, at the request of Rain-
bow Navigation, Inc. (Rainbow), the court
? issued an injunction against the Depart-
ment of the Navy, restraining Navy plans to
deprive Rainbow of the preference granted
to it by the Cargo Preference Act of 1904, 10
U.S.C. ? 2631. It appeared that the Secre-
tary of the Navy had determined that Rain-
bow's rates were "excessive and otherwise
unreasonable"?if. true, a valid reason for
denying ,it the otherwise available prefer-
ence. But after briefing and hearing, the
Court found that the Secretary's findings
"were nothing more tthan an after-the-fact
attempt to shore up a decision made on
other grounds." Rainbow Navigation, Inc.
V. Department of the Navy, 620 F. Supp. 534,
540 (D.D.C. 1985). More specifically, the
Court concluded that the Navy's determina-
tion was not based on Rainbow's freight
rates but on "foreign policy, political, or
geopolitical grounds." Id. at 541.
What had happened was that the Depart-
ment of State, desirous of good relations
with Iceland, an ally of the United States,
gave in to entreaties from that nation for
the recapture of the U.S. military cargo
trade exclusively for Icelandic shipping in-
terests.' The determinations, declarations,
and representations made to the Court re-
garding Rainbow's allegedly excessive rates, ,
it had turned out, not only were not borne
out by the facts but were merely a pretext
obscuring the real foreign policy purposes
of our government.
Since Rainbow was not in violation of the
Cargo Preference Act, and was entitled
under law to the benefits of the Act, the
Court issued an injunction which required
the restoration of that company's prefer-
ence with respect to the carriage of U.S.
military supplies between this country and
Iceland in accordance with the Act. The
Court of Appeals, in an opinion by then
Judge Scalia, affirmed this Court's decision.
Rainbow Navigation, Inc., v. Department of
the Navy, 783 F.2d 1072 (D.C. Cir. 1986).
While the issues regarding this Navy at-
tempt to bypass the law were still in the
courts, the Department engaged in yet a
second subterfuge designed to elbow Rain-
bow out of the Icelandic trade. This time
the Navy sought to dispense with Rainbow's
services by a diversion of the cargo at issue
to military aircraft. Government regulations
provided that "the preferred method of
transporting supplies for the Government is
by commercial carriers," and that govern-
ment aircraft may be used only "if, . . they
are available and not fully utilized . . ." 48
C.F.R. 47401(bX1). Once again, solemn dec-
larations were submitted to the Court to the
effect that all missions that carried cargo
from Iceland to this country were scheduled
there "for purposes other than the carriage
of cargo back to the United States" and that
"missions were not flown to [Iceland] for
the purpose of picking up [such] cargo."
? This, too, was untrue.
The parties are the Department of the Navy
and some of its officials, Rainbow Navigation, Inc.,
the International Organization of Masters. Mates
& Pilots (the Union), and Iceland Steamship Co.,
Ltd. (Eimskip). Eimskip is before the Court for the
first time in the current phase of the litigation.
'Rainbow may be the only effective competitor
of the Icelandic shippers.
The evidence showed that, after the then
lawsuit was filed, a sharp increase occurred
In the number of flights from Iceland to
this country, and a corresponding decrease
In the amount of cargo carried by Rainbow.
The Court ultimately concluded that the
Navy had once again taken steps unlawfully
to squeeze Rainbow out of the Icelandic
trade. Memorandum Order dated October
17, 1986? This brings us to the current
phase of the litigation.
II
On September 24, 1986, the United States
and Iceland signed a treaty, including a
memorandum of understanding (MOU), 4 re-
garding the same military cargo route be-
tween the two countries that had been at
Issue previously.' That treaty provides for a
competition between United States flag car-
riers and Icelandic shipping companies for
the transport of military cargo beteeen the
two countries. The method by which the
competition is to be carried out is described
in the memorandum of understanding as
follows:
Each competition shall result in contract
awards to both an Icelandic shipping com-
pany and a United States flag carrier such
that not to exceed 65 percent of the cargo
shall be carried by the lowest bidder and the
remainder shall be carried by the next
lowest bidder of the other country . . . .
Pursuant to the treaty and the MOU, a
single competition was held in 1987 for the
carriage of one year's worth of military
cargo on the United States-Iceland route.
Eimskip, an Icelandic concern, was the
"lowest bidder," receiving 65%, and Rain-
bow took the remaining 35% as the "next
lowest bidder." However, this year the Navy
planned to change the process. Acting
through the Military Sealift Command,'
the Navy has announced that it intends to
hold two separate competitions, separately
priced-one competition for the 65 percent of
the cargo, the other, a separate competition,
for the remaining 35 percent of the cargo?
Partial Summary Judgment was granted to
Rainbow as it had requested.
Treaty between the United States of America
and the Republic of Iceland to Facilitate their De-
fense Relationship, with related Memorandum of
Understanding, September 4, 1986. The United
States Senate ratified the treaty and memorandum
of understanding on October 8, 1986.
'Before the treaty was signed and ratified, the
Navy proposed a regulation that, as the Senate re-
counted in its report on the treaty, "purported to
interpret the 'excessive or otherwise unreasonable'
provision in the 1904 [Aid, but that would have, in
effect, given the Secretary of the Navy the discre-
tion to waive the Elliot at any time." S. Rep. No. 27,
99th Cong., 1st Sess. 3 (1986). This appears to have
been yet another attempt to oust Rainbow from
the Icelandic trade route.
'The Military Sealift Command is the United
States contracting agency responsible for procure-
ments for the United States-Iceland military cargo
sea route.
The Request for Proposals for these competi-
tions was issued an March 25, 1988. In addition to
holding two competitions instead of one, other
changes in the RFP included that all the cargo
would be charged on a straight freight basis (rather
than permitting the carrier of the 35 percent to use
a time charter), that vessel specifications would no
longer be required, that the Icelandic port of desti-
nation wold be Rekjavik, much farther from the
U.S. military base than Njardvik, that there would
be no established schedule for travel, and that
there would be no small business setaside. Rainbow
complains about these changes as well, but the-
Court need only rest its preliminary injunction on
the Navy's violation of the treaty and MOU.
May 26', 1988
Had Rainbow 8 not filed this action to stop
the procurement as violative of the treaty,
the MOU, and the Administrative Proce-
dure Act, the Navy would have awarded con-
tracts for the two portions of the cargo car-
riage on April 25, 1988.? However, since
April 15, 1988, the Navy has been under a
temporary restraining order enjoining It
from proceeding with the 1988 procurement
In the manner planned.
III
Before the Court can reach the substance
of Rainbow's complaint, it must address the
Navy's threshold defenses?that Rainbow
lacks standing to sue, that the Court has no
jurisdiction,- and that sovereign Immunity
bars the action. None of these defenses has
merit; only the standing issue deserves ex-
tended discussion.
The Navy suggests that Rainbow lacks
standing because neither the treaty nor the
MOU expressly grants a private right of
action?' However, the absence of an express
grant is not determinative. When a treaty is
not explicit on the question whether it is of
Its own force a part of United States domes-
tic law, a court must interpret it to effectu-
ate the intent of the signatory parties."
As the Court of Appeals for this Circuit
concluded in Diggs v. Richardson, 555 F.2d
848, 851 (D.C. Cir. 1976); and Cardenas v.
Smith, 733 F.2d 909, 918 (D.C. Cir. 1984),"
the language of a treaty may manifest an
Intent by the signatories that it be or not be
self-executing, and if the language is uncer-
tain, resort may be had to the circumstances
surrounding the treaty's execution to ascer-
tain that intent. Id." A court interprets a
treaty as self-executing unless "the agree-
ment manifests an intention that it shall
not become effective as domestic law with-
out the enactment of implementing legisla-
tion, or in those rare cases where imple-
menting legislation is constitutionally re-
quired."' Applying these standards, the
Court has no difficulty concluding that the
United States-Icelandic treaty does not re-
quire implementing legislation."
While the Court herein generally refers for the
sake of convenience only to Rainbow on the plain-
tiffs' side of this litigation, the Union has inter-
vened; it is proceeding on the basis of the same ar-
guments as those-made by Rainbow; and it is enti-
tled to the same benefits flowing from the Court's
orders. See note I, supra.
'None of the changes from the 1987 require-
ments (see note 7, supra) may become effective if
their purpose or effect would be to interfere, direct-
ly or indirectly, with the preliminary injunction or
the Rainbow and Union rights recognized herein.
"In the Administrative Procedure Act, Congress
conferred the right of judicial review upon any
person "adversely affected or aggrieved by agency
action." 5 U.S.C. '102. Potential and actual govern-
ment contactors have standing to proceed in dis-
trict court to challenge a procurement under the
Administrative Procedure Act. Scanwell Laborato-
ries, Inc. v. Shaffer, 424 F.2d 859, 861-873 (D.C. Cir.
1970).
"Restatement (Second) of Foreign Relations
?154(1965).
"See also People of Saipan v. Department of In-
terior, 502 F.2d 90, 97 (9th Cir. 1974).
"Reference by courts to contextual factors sur-
rounding a treaty in order to determine whether it
is self-executing occurred even in the politically
charged atmosphere of Iranian seizures of property
and a suit against a foreign government. See Ameri-
can International Group v. Islamic Republic of
Iran, 493 F. Supp. 522 (D.D.C. 1980).
"Restatement (Second) Foreign Relations (Re-
vised) Tentative Draft No. 1 (1980) I 131. -
"Were the treaty not to be read as self-execut-
ing, it would not become part of United States do-
mestic law. As a result, Rainbow presumably could
sue for relief under the Cargo Preference Act. How-
ever, that was not the intent of the two govern-
ments when they signed the treaty.
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r- dence of the self-executing nature of the
In the first place, the government has of-
fered no evidence to rebut the presumption
(see text to note 14 supra) that the Iceland
treaty was intended to be effective as do-
mestic law. That alone should end the
matter. But there is also ample positive evi-
treaty.
The language of the treaty itself suggests
that it was intended to operate of its own
force upon ratification. Article I declares
that cargo transportation services "shall be
Provided" on the basis of a competition be-
tween United States and Iceland shipping
companies which will "ensure" the contin-
ued well-being of shippers from each coun-
try. Since the subject of the treaty is U.S.
military cargo, it is implicit that the United
States contracting authority would carry
out the competition. This understanding is
borne out by the terms of the MOU which
explicitly refer to the United States con-
tracting authority.'s
Similarly, the treaty goes on to slate in
Article IV that the "provisions of this
Treaty and any implementing arrangements
concluded pursuant to Article I shall apply
notwithstanding any prior inconsistent law
or regulation of the United States of Amer-
ica. ? ? ? " thus, the treaty mandates in
terms that, for domestic law purposes, it dis-
places existing American law.
Perhpas even more significant than the
treaty language are the representations
made by Executive Branch officials to the
United States Senate in connection with the
ratification proceedings. These statements,
, discussed below, clearly support the inter-
pretation that rights would vest without
further legislation, for the officials repre-
sented to the Senate that if ratified, the
treaty would protect the existing U.S.-flag
presence on the United States-Iceland
route.'7
Thus, at the hearings on ratification of
the treaty, the Honorable Edward J. Der-
winski, Counselor of the Department of
State, with Rear Admiral Walter 'I'. Piotti,
Jr., Commander of the Military Sealift
Command at his side, assured the Senate
that he agreed with the statement by Amer-
ican maritime organizations of which the
following paragraph is a part:
The ABM Treaty Interpretation Resolu-
tion, Report of the Committee on Foreign
Relations United States Senate, S. Rep. No.
184, 100th Cong., 1st Sess. 49 (1987). See
also Restatement (Second) Foreign Rela-
tions Law of the United States (Revised),
Tentative Draft No. 6 (1985). 1 314, com-
ment d and 1 314(2).
The Administration must further assure
that the Treaty, if ratified, will be imple-
mented in such a fashion that the existing
United States-flag service in the Iceland
trade will not be disadvantaged. In other
words, the United States-flag presence and
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
"As Article I is written, the United States may
not qualify or modify the obligations placed upon it
by the treaty through legislation or administrative
regulation. See British Caledonian Airways Ltd. V.
Bond, 465 Fid 1153, 1161 (1981).
"The Department of Justice disavowed in court
the representations made by the Navy and the De-
partment of State to the Senate during treaty rati-
fication proceedings as merely "precatory" and
"non-binding." Hearing on Rainbow's motion for a
temporary restraining order, April 15, 1988. This
position is disturbing since it undercuts the founda-
tion upon which Senate ratification was based, at
least in part. As Professor Henkin recently testi-
fied:
The President can only make a treaty that means
what the Senate understood the treaty to mean
when the Senate gave its consent.. . The Senate's
understanding of the treaty to which its consent is
binding on the President. He can make the treaty
only as so understood. He cannot make the treaty
and insist that it means something else . . . the
Constitution clearly implies( I that it is what the
Senate understands the treaty to mean?that is
what the treaty means for purposes of its consent.
the maritime employment will be main-
tained just as if the 1904 Act were fully in
effect in the Iceland trade."
Similarly, on the question as to how the
treaty would affect Rainbow, the only U.S.-
flag carrier on that route, Senator Mathias
asked and Mr. Derwinski replied:
Senator MATHIAS. What about the cur-
rent American flag carrier? Are there any
plans in effect to save harmless the current
cargo carrier that is now carrying supplies
to the [U.S.] military base in Iceland?
DERWINSKI. My understanding is that the
current carrier has beep involved in a
number of discussions with appropriate au-
thorities, and despite the fact that we could
not provide, obviously, within the treaty for
specific protection for an entity, we did have
in mind at all times the need to protect the
interests of the current carrier (emphasis
added)."?
Relying in part upon these representa-
tions, the Senate Folmign Relations Com-
mittee recommended that the Senate ratify
the treaty. In fact, the Committee stated
In its report to the full Senate that
advice and consent were being conditioned
upon three assurances given by the Depart-
ments of State and Defense, one of them
being that the treaty will be implemented in
such a way that the existing United States-
flag service in Iceland trade would not be
disadvantaged as a result of the Treaty. The
Committee received these assurances at its
hearing and recommends advice and consent
on that basis only."
Two days after the Committee Report was
issued, and on the day the Treaty was rati-
fied, Senator Pell repeated this condition of
ratification on the Senate floor."
This history clearly shows that the Senate
was concerned about protecting the inter-
ests of the current American carrier;" that
to give meaning to that concern, It intended
the treaty to provide that protection with-
out further requirements; and that the Ex-.
ecutive Branch agreed.
By even raising the standing issue, the
Navy is adding to its pattern of false repre-
sentations discussed in Part I, supra. Having
assured the Senate that the treaty would
not disadvantage the "existing United
States flag service . . . Land that] United
States presence and the maritime employ-
ment will be 'maintained" as under the
Cargo Preference Act, the Navy is now argu-
ing through its counsel that this assurance
Is meaningless unless new implementing leg-
islation is first enacted. No mention appears
to have ever been madeto the Senate or its
committee regarding implementing legisla-
tion or the need therefor, and the Adminis-
tration has never proposed such legislation.
The Court concludes that the Iceland
treaty is self-executing and that Rainbow
and the Union have standing to bring this
action.
As to the other threshold defenses ad-
vanced by the Navy, they either fall away
upon the determination that the treaty is
self-executing or they are otherwise un-
founded. The Navy protests that the Court
lacks subject matter jurisdiction over Rain-
bow's claims, but according to 28 U.S.C.
? 1331, "Itlhe district courts shall have
original jurisdiction of all civil actions aris-
ing under . . . treaties of the United
"United States-Icelandic Treaty on the Carriage
of Military Cargo: Hearings on the Treaty Before
the Committee on Foreign Relations, 99th Cong.,
2nd Sess., p. 9 (1986).
"Id. at 11. report to the full Senate that
"S. Rep. No. 2'1, supra, note 5.
"132 Cong. Rec. 815661 (daily ed. October 8,
1986).
"As this discussion illustrates, Rainbow has
standing since It could hardly be more directly
within the "zone of interests" protected by the
treaty.
S 6777
States." See also U.S. Const. Art. VI Cl. 2.
And it is of course well established that the
review provision of the Administrative Pro-
cedure Act, 5 'U.S.C. ? 502, waives sovereign
immunity for injunction actions."
xv
The Court now turns to the merits of
Rainbow's complaint and its request for a
preliminary injunction." Rainbow alleges
that the 1988 Navy procurement for the
United States-Iceland route is contrary to
the language and the purposes of the
memorandum of understanding. The Navy's
answer is that two competitions between
American and Icelandic shippers are permit-
ted by? the treaty and MOU?one competi-
tion for 65% of the cargo, and a second com-
petition for 35% of the cargo. In the opinion
of the Court, that construction of the treaty
and the MOU is untenable.
The language of the MOU 25 is straight-
forward and unmistakable:"
. . . Each competition shall result in con-
tract awards .to both an Icelandic shipping
company and a United States flag carrier
such that not to exceed 65 percent of the
cargo shall be carried by the lowest bidder
and the remainder shall be carried by the
next lowest bidder of the other country. . .
(emphasis added).
Thus, according to the MOU, for any
given shipment period, there is to be a
single competition dealing with 100% of the
cargo. At each such competition, the Navy
awards up to 65% of the cargo to the lowest
bidder?a shipper from either country?and
the remainder, 35% of the cargo or more"
to the next lowest bidder?a shipper from
the other country.
However, under the Navy's construction
of the MUO, and under the awards proce-
dure it contemplates, the "next lowest
bidder" will never receive any portion of the
"See Warin v., Director, Department of Treasury,
672 F.2d 590, 591-92 (6th Cir. 1982); Neal v. Secre-
tary of Navy, 639 F.2d 1029, 1036-37 (3d Cir. 1981);
Jaffee V. U.S., 592 F.2d 712. 717-719 (3d Cir. 1979);
Beller v. Middendorf, 632 F.2d 788, 796-97, 799 (9th
Cir. 1980).
"To prevail on a motion for a preliminary in-
junction, Rainbow must show (1) that it has a sub-
stantial likelihood of prevailing on the merits; (2)
that it will be irreparably harmed if an injunction
-is not granted; (3) that the interests of all affected
parties are properly balanced by the said relief; and
(4) that the public interest is clearly served by the
issuance of an injunction. See Washington Metro-
politan Area Transit Commission v. Holiday Tours,
Inc. 559 F.2d 841 (D.C. Cir. 1977); Virginia Petrole-
um Jobbers Association v. Federal Power Commis-
sion, 259 F.2d 291 (D.C. Cir. 1958).
"An MOU is an international executive agree-
ment which must be interpreted according to the
Principles applicable to treaties. Air Canada V. U.S.
Department of Transportation, No. 87-1300, slip op.
at 6 (D.C. Cir. Apr. 15, 1988). The general rule in in-
terpreting treaties is:
The clear import of treaty language controls
unless "application of the words of the treaty ac-
cording to their obvious meaning effects a result in-
consistent with the intent or expectations of its sig-
natories.
Sumitomo Shoji America, Inc. v. Avagliano, 457
U.S. 176, 180 (1982), quoting Maximov v. United
States, 373 U.S. 49, 54 (1963).
54 "An international agreement is to be interpret-
ed in good faith in accordance with the ordinary
meaning to be given to its terms in their context
and in the light of its objects and purposes." Re-
statement of the Law (Second) Foreign Relations
Law of the United States (Revised), Tentative
Draft No. 6 (1985), ?325(1). This same rule of inter-
pretation is prescribed by the Vienna Convention of
the Law of Treaties Article 31(1). S. Exec. L 92d
Cong., 1st Sess. (1971), 8 I.L.M. 679. As the State
Department has noted. "the Convention is already
recognized as the authoritative guide to current
treaty law and practice." Id.
"More than 35% of the-cargo will be so awarded
If the lowest bidder takes less than 65%.
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S 6778 CONGRESSIONAL RECORD ? SENATE
contract. That result is achieved by having
two competitions rather than one: once the
lowest bidder from one country wins the
contract for 65% of the cargo, instead of the
remainder going to the next lowest bidder, a
second competition is held for that re-
mainder at which, again, the lowest bidder
prevails. With respect to neither competi-
tion will the "next lowest bidder" even be
considered; it.would have to be the lowest
bidder in the second competition to receive
any portion of the contract.28 The language
in the MOU referring to the "next lowest
bidder" is shnply disregarded and given no
effect.
The language of the MOLT?which the
Court finds to be unambigous in its support
of Rainbow's position?is further buttressed
by the construction placed thereon by the
Secretary of Defense himself. Secretary
Carlucci wrote as follows on March 25, 1988
to Senator Lugar of Indiana, a member of
the Committee on Foreign Relations: 29
The treaty and implementing memoran-
dum of understanding foster competition
between U.S. and Icelandic flag carriers for
100 percent of the cargo transported by sea
between Iceland and the United States for
purposes of the 1951 Defense Agreement be-
tween the two countries. The overall low
bidder is awarded 65 percent of the cargo
and the low bidder of the other country is
awarded the remaining 35 percent. This is
how the existing contracts were awarded.
Thus, the Secretary concluded that the
MOU requires a single competition in which
the contestants bid for 100% of the cargo,
and that the "overall low bidder" wins a
contract to carry 65% of the cargo, while
the "remaining 35 percent" goes to the low
bidder from the other country?precisely as
Rainbow asserts. Any still remaining doubt
Is allayed by the Secretary's reference to a
continuation of the method by which the
existing contracts were awarded. Those
(1987) contracts were, of course, awarded
precisely on the basis of the interpretation
of the MOU urged upon the Court by Rain-
bow.
Rainbow and its seamen have an extreme-
ly strong likelihood of success on the merits.
These parties also stand to be irreparably
harmed if the procurement is not enjoined.
As concerns Rainbow, its business would in
all likelihood have to be shut down; as re-
gards the Union, its members employed by
Rainbow will lose their jobs. Indeed, the
Court is persuaded, on the basis of the evi-
dence before it, that Rainbow cannot secure
alternate shipping business and that, in
view of the depressed nature of the Ameri-
can merchant marine, its seamen are unlike-
ly to find employment.
By issuing a preliminary injunction, the
Court preserves the status quo between the
parties.3? And, in view of the existence of
present arrangements, there will be no
interruption of the delivery of the cargo and
thus no injury to the public interest or to
the defendants.
"Rainbow claims that, for a variety of reasons, it
will not be able to compete effectively under the
Navy's two-competition system, and the Court is
persuaded on the basis of the evidence available at
this juncture, that this representation is correct.
"Secretary Carlucci's letter was attached to the
Union's motion for preliminary injunction.
"Rainbow will continue to carry its share of the
cargo under the 1987 procurement, and so will
Eimskip, the Icelandic carrier. The Court takes no
position on the issue of how Eimskip should be paid
for transporting its 85% of the cargo during the
period of this injunction. That is a matter for reso-
lution between the Navy and Eirnskip.
VI
As indicated, the recent events connected
with implementation of the treaty repre-
sented the third time that the Navy has at-
tempted to eliminate Rainbow, a small
American-flag shipper, from the Icelandic
trade. In 1985, the Navy announced and as-
sured the Court that Rainbow had to be dis-
qualified from a cargo preference because
its rates were excessive. Upon examination,
it was found that this was untrue and that
the real reason for the attempted disqualifi-
cation was the Department of State's plan
to permit Icelandic shippers to regain their
monopoly with respect to that trade. In
1986, the Navy assured the Court that Rain-
bow's services could be dispensed with be-
cause military aircraft which were flying by
way of Iceland anyway could perform Rain-
bow's role. Upon inquiry, it became appar-
ent that, contrary to the Navy's assurances
and contrary to binding regulations, mili-
tary aircraft were capable of taking on that
role only if they were diverted from their
normal duties.
Now the Navy is attempting to eliminate
Rainbow once again, this time under the
treaty with Iceland. The present effort is as
disingenuous as the other two. The con-
struction of the memorandum of under-
standing adopted by the Navy is contrary to
the ordinary meaning of the language con-
tained in that document. It is contrary also
to the assurances given by Mr. Derwinski
and Rear Admiral Piotti, Jr., to the Senate
Committee on Foreign Relations when the
treaty was before that committee for ratifi-
cation. And it is contrary, finally, to an in-
terpretation of the treaty announced just
two months ago by Secretary of Defense
Carlucci himself.
The Court understands that Iceland is a
staunch ally of the United States, and it
sympathizes with the efforts of our govern-
ment to satisfy the demands of that nation.
But this may not be done at the expense of
one of the few remaining American-flag ves?
sels of our merchant marine and the few re-
maining American seamen who found em-
ployment there. More particularly, this may
not be done in violation of American law, of
the language and purpose of a treaty, and of
the solemn representations made to the
United States Senate in connection with the
ratification of that treaty. '
The Court has accordingly, once again, en-
joined the Navy's attempt to put Rainbow
out of business.
May 17, 1988,
HAROLD H. GREEN,
U.S. District Judge.
Mr. SPECTER. Mr, President, I
would like to point out that this is a
very extraordinary case that came to
the court on three occasions. Without
going into it in great length, as sum-
marized by Judge Green on page 13 of
the slip opinion, that the Navy hear-
ing was adding to its pattern of false
representations which I think is a very
terrible factor in delimiting the treaty
Interpretation issue.
I would now like to direct a question
to the distinguished Senator from
Georgia, Senator NUNN, and that re-
lates to the criteria reaching common
understandings because this is impor-
tant in light of what we are doing here
today and referring to page 90 of the
committee report. The Sofaer doctrine
Is quoted as saying that there will be
an understanding where first, "gener-
ally understood" by the Senate;
second, "clearly intended" by the
May 26, 1988
Senate; and third, "relied upon" by,
the Senate.
I now refer to testimony Senator
Ntrim gave according to the record
before the Foreign Relations Commit-
tee, page 144, where he said, referring
the Culvahouse letter, "As a matter of
domestic law; however, the President
Is bound by shared interpretations
which were both authoritatively com-
municated to the Senate by the Exec-
utive, clearly intended, generally un-
derstood, and relied upon by the
Senate in its advice and consent to
ratification."
Then the Senator makes the state-
ment, "That sentence I agree with
completely." And my question is: Does
the Senator concur that those criteria
are indispensible in order to have the
application of an understanding of the
Senate?
Mr. NUNN. I will say to the Senator
It depends on how one interprets those
words. I -would certainly not interpret
them the way I am afraid the Senator
from Pennsylvania interpreted those
words.
When the administration comes up
and testifies before a committee of the
Senate, the Senate has received that
information and has relied on that in-
formation. I do not think the Senator
has to jump up and down in the For-
eign Relations Committee and say,
"Oh, I relied on that, you told us that
and I rely on that."
No; I do not think that. I think
when the testimony comes in, Sena-
tors can sit there calmly and even
snooze off if they like to?and not
many of our colleagues do that?they
can even snooze off and if the Secre-
tary of State, or another authoritative
witness, makes a statement, then the
Senate, through its committee, has
relied?
Mr. SPECTER. I ask the Senator to
be as brief as he can be. I am not sug-
gesting jumping up and down here. I
am talking about criteria as a legal
? matter and there are three conditions.
Generally understood, clearly intend-
ed, and relied upon. And it is a matter
of what the facts show.
But I take it the Senator does agree
that those are the three criteria which
establish the Senate's understanding
If they are met.
Mr. NUNN. I do not agree with that
because I know where the Senator is
coming from. He is coming from the
point of view the Senate has to under-
stand, we have to prove that we under-
stood, we have to show that we' relied
on. I do not agree that you have to
demonstrate that we relied on testimo-
ny, other than by showing that we re-
ceived authoritative testimony. If you
had to prove that we came out here on
the floor with everything the Senate
Foreign Relations Committee received,
with everything the Armed Services
Committee received, and everything
the Intelligence Committee received,
that we put it in the record, and that
we said we relied on it and understood
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CONGRESSIONAL RECORD ? SENATE S 6779
it, that would be an exercise in abso-
lute absurdity, and I think it would
render the process unworkable.
So I would not agree that those
words should be added to simply the
words "authoritative testimony."
I am glad the Senator has given me
the opportunity to make that perfect-
ly clear.
Mr. SPECTER. This Senator is not
coming from anywhere. I understand
the answer of the distinguished Sena:
tor from Georgia. He is now saying he
disavows what he testified to before
the Foreign Relations Committee,
where he said that sentence there, "I
agree with completely." He is now
saying he does not agree with it at all.
Mr. NUNN. If the Senator would go
right down the page on that same
transcript, he will find that I went on
and say, and I quote from that state-
ment:
We have always thought that it [the un-
derstanding of the executive branch testi-
mony relied upon by the Senate] was
through the committee process. If we can
simply declare that the U.S. Senate works
through its committees, which we all know
we do, and that matters that have been re-
ceived, authoritative testimony received
before the committees is deemed to have
been received by the entire Senate and
deemed to have been focused on by the
whole Senate, then it seems to me that we
could go a long way.
If the Senator has the whole page of
that transcript instead of one part of
it then he will see there was a qualifi-
cation and I made it clear in that hear-
ing what I was talking about.
Mr. SPECTER. Well, I have looked
at the entire page. But the three refer-
ences which track Sofaer directly are
"clearly intended, generally under-
stood, and relied upon by the Senate
in its advice and consent to ratifica-
tion." The Senator from Georgia said
that he agreed with that sentence
there and I agree with him complete-
ly.
Mr. NUNN. I would say, if the Sena-
tor would yield, I do agree with that
completely, provided it is understood
when an authoritative witness comes
from the administration and testifies
before a committee, the Senate should
be deemed to have relied on that testi-
mony in its deliberations.
Mr. SPECTER. Well, I thank the
Senator. When he says he agrees with
it completely, under that proviso, I
accept that.
I had earlier asked the distinguished
majority leader the question which I
have since privately discussed with the
Senator from Georgia relating to what
the Senator from Georgia said at a
committee hearing?that the Soviets
were bound by what they heard in
ratification proceedings, where the
Senator from Georgia, was quoted as
saying that:
If the Soviets remain silent on points of
interpretation presented by executive
branch witnesses, then I believe the U.S.
Senate, as well as our Government, can rea-
sonably believe and contend that silence
connotes consent to those interpretations.
It seems to this Senator that this is
where the Biden, now the Byrd, condi-
tion is going, and it is a remarkable
change in international law treaty in-
terpretation, in light of the statements
by the Supreme Court of the United
States in Societe versus U.S. District
Court, decided on June 15 of last year,
referring to the negotiations and the
practical construction adopted by the
parties, and the decision back in 1942
on the Choctaw Nation case, and as
those principles are picked up in Cope-
land versus United States, which says
this:
Most important, foreign governments
dealing with us must rely upon the official
Instruments of ratification as an expression
of the full intent of the Government of the
Unitbd States, precisely as we expect from
foreign governments.
Now, my question to the Senator
from Georgia is: Do you have any au-
thority at all that there is any weight
at all to be attached to bind a foreign
nation from what goes on in a domes-
tic ratification proceedings?
Mr. NUNN. I would say to the Sena-
tor?I do not have my exact words and
I would like to get those?but what I
intended to convey was--
Mr. SPECTER. Let me make them
available to you. I have them right
here.
Mr. NUNN. If we have an open and
public hearing in which statements re-
lating to a treaty are made by the ex-
ecutive branch of Government, and if
the Soviet Union disagrees with those
statements, then I think they have
some duty to come forward and let the
executive branch know that they do
not agree with that interpretation.
Now, I would not go so far as to say
they are bound. I think that would be
overstating it. If I stated it as the Sen-
ator said, then I would say that was
going too far.
I do believe there is a strong argu-
ment to be made that when one party
publicly and openly cites their inter-
pretation of a treaty in a way that is
fundamentally different from the
other party's understanding, the other
party, knowing of that, if they know
of it, has some affirmative duty to
make that known. I would not go so
far as to say they are bound, though. I
am told that I did not say that.
Mr. SPECTER. I read what the Sen-
ator said.
Mr. NUNN. If I did, I went too far.
Mr. SPECTER. Do you have any au-
thority at all for the proposition that
a foreign government has to pay any
attention at all to what goes on in a
ratification proceedings and has any
duty at all to make any response at all:
-any authority for that?
Mr. NUNN. I think basic contract
law would tell you that when one
party, before a contract has been com-
pletely entered into by the ratification
thereof or formal procedure, hears the
other party misinterpret it, there is
some obligation for that party to cor-
rect It, and that silence does have
some evidentiary effect on the Inter-
pretation of that contract. That is
basic contract law and basic common
sense.
Mr. SPECTER. No court opinion, no
judicial opinion, just general interpre-
tation.
Mr. NUNN. Does the Senator have
any court opinion that says that is
not?
Mr. SPECTER. Yes, I do. I would be
glad to yield for a question on that.
The Copeland versus United States
case says that; Societe says it is negoti-
ations which govern, as does the Choc-
taw Indian case.
Mr. President, I inquire how much
time I have remaining.
The PRESIDING OlorICER. One
minute and 45 seconds.
Mr. SPECTER. I have quite a few
more questions, Mr. President. I will
seek to have an amendment which I
will add to bring these issues up in a
time sequence when we have more
than the limited time. On the ques-
tions which I propounded, we did not
have a time for discussion with the
distinguished majority leader.
Mr. President, in conclusion, in the
minute that I have left, I think the ar-
guments here have disclosed conclu-
sively that the Byrd condition makes
major modifications in international
law and treaty interpretation by disre-
garding the negotiating record deemed
immaterial under the committee
report?
Mr. WILSON. The Senator has 6
minutes.
Mr. SPECTER. Six minutes?
Well, in light of having 6 minutes, I
say to Senator Norm, I have some
more questions.
I turn to an exchange which you and
I had before the joint hearings of the
Foreign Relations Committee and Ju-
diciary Committee. I alerted you on
this a few minutes ago, where we had
this exchange. I think that the discus-
sion which we had early in 1987 really
capsulates the problems. which we
have here on the so-called two treaty
doctrine, which this Senator sees,
where we have the negotiations with
the Soviet Union on one treaty and we
have a general understanding with the
Senate on another.
It may be that under the Biden con-
dition, as restated by the Byrd condi-
- tion, that the understanding may arise'
in some implicit way, nebulous way, as
the committee report spells out. I had
asked you at that time what happens
where, at page 72, the U.S. position to
which the Senate has concurred is at
variance with what the executive and
the Soviets agreed to. Your answer
was:
I think it would be a first-class, royal mess
if that proves to be the case.
What happens is, as, and when we
get around to debating narrow versus
broad, and the wisdom of the distin-
guished Senator from South Carolina
Is not accepted and we come to the
conclusion that the Soviets rejected
the narrow interpretation when we
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S 6780 CONGRESSIONAL RECORD ? SENATE
tabled it and the subsequent practices
of the parties showed that there was a
broad interpretation? We do not have
time now to go into all the records. I
am asking you to assume my hypo-
thetical.
Mr. NUNN. I already fundamentally
disagree with every assumption you
have made, so it is hard for me to
answer the question.
Mr. SPECTER. Well, then, I will not
ask the question. I will just make the
argument.
The argument that I will make is
that, as this Senator reads the negoti-
ating record?and I have read it ad
nauseam?there is solid evidence that
the Soviets rejected the narrow inter-
pretation and then, when it came into
their interest to accept the narrow in-
terpretation, they did so. - '
The ABM Treaty, if, as and when we
complete the hearings, which have not
yet been completed, will show that we
have two treaties, much to the disad-
vantage of the United States. If the
ABM Treaty says we have the narrow
Interpretation, so be it, Mr. President.
But where it does not say it and where
there is an ambiguity on the record,
then the United States ought not to be
disadvantaged to spend billion of dol-
lars more in tests and to have tests de-
layed in that respect.
Mr. NUNN. Will the Senator yield? I
promise just 30 seconds on this point.
Mr. SPECTER. I ask unanimous
consent that we have the additional
time for what the Senator wishes to
ask.
Mr. BYRD. Mr. President, how
much additional time does the Senator
want?
Mr. SPECTER. How much time Sen-
ator Num; uses.
Mr. NUNN. I withdraw the request.
Mr. BYRD. Mr. President, I ask
unanimous consent that there be 3 ad-
ditional minutes to the distinguished
Senator from Pennsylvania and 3 min-
utes to the distinguished Senator from
Maine.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. SPECTER. I thank the majority
leader.
Mr. NUNN. Mr. President, I would
say on the question of where there are
two different interpretations?and I
think the executive branch would
have really made a very serious error
If that happened, but if it did?Charles
Cooper, an Assistant Attorney Gener-
al, has written an opinion on that. He
is an Assistant Attorney General in
this administration. He states in that
opinion:
Accordingly, in such extreme cases, we
would have little doubt that, as a matter of
domestic law, the courts would construe the
treaty as presented to and accepted by the
Senate, even if as a matter of international
law the treaty might have a different mean-
ing.
Mr. SPECTER. Well, Mr. President,
I think that quotation just cited by
the Senator from Georgia illustrates
the point that you have two treaties.
You have a treaty negotiated by the
executive branch with the Soviet
Union and you have a treaty which
was apparently implicitly understood
by the Senate. If and when we get
around to debating the ABM Treaty
and go through the negotiating record
and finish those hearings, this Senator
submits that the evidence will be con-
clusive that there is at least ambiguity
and that what we are doing here today
with the Biden condition as amended
by the Byrd condition is strangling the
United States. We are holding our
Government to a tougher standard
than the standard which is binding on
the Soviet Union.
Mr. President, when this record is
reread in a later day, when there Are
not the partisan passions present
today and where there is not the rush
to judgment, I submit there will be a
different conclusion reached.
We have established a record, re-
gardless of the vote, and I am not so
naive as to think that the Biden condi-
tion will not prevail here today. We
have established a record which I
think is an accurate statement of the
law to which this body will return in a
more deliberate fashion at a later
date. Much like the decision on Plessy
versus Ferguson in 1896 when one sole
Supreme Court Justice stood in dis-
sent, later adopted as the law of the
land. But in calmer reflection, this
record is replete with legal principles
that are being violated, on internation-
al law, interpretation of treaties, and
violated on U.S. constitutional inter-
pretation.
I thank the Chair and yield the
floor.
The PRESIDING OFFICER. The
Senator from Maine has 3 minutes:
Mr. COHEN. Mr. President, let me
just offer a personal view of why we
are here discussing this matter right
now. It has to do with the interpreta-
tion of the ABM Treaty. This is no
doubt about it, just listening to the
debate that has been taking place.
It is my personal judgment that the
administration found itself bumping
up against the restrictions of the ABM
Treaty and, rather than give notice
and opt out of that treaty, they sent
Judge Sofaer and others back through
the records, perusing through the
records, and they came up with a dif-
ferent interpretation. Whether you
call it an original interpretation or a
reinterpretation is a matter of some
dispute here.
But, in essence, what they are saying
is: ?The Nixon administration was
wrong, the Ford administration was
wrong, and the Carter administration
was wrong; and that we now have the
correct interpretation.
Well, that is subject to debate. I do
not accept that particular view, but
that view is shared by a number of my
colleagues on this side of the aisle.
But what we have tried to do in
working out this particular compro-
mise is to accommodate that kind of
dispute. Paragraph 4 added to the
May 26, 11 i8
Byrd amendment was designed specifi-
cally to defuse the issue. There are
those on this side of the aisle who feel
that the Byrd-Biden-Nunn-et al.
amendment really is designed to give
leverage to the? Senate to use and
whack the Reagan administration on
Its interpretation of the ABM Treaty.
Senator NuNN has indicated he does
not seek to use this particular amend-
ment to achieve that end. The purpose
of including paragraph 4?and this was
negotiated in a bipartisan fashion,
Senator DOLE took part, we had Sena-
tor Baker here, we had others?was to
try to break this logjam.
It seems to me that paragraph 4
ought to at least allow some opportu-
nity for those who disagree with the
so-called narrow interpretation to
fight that particular battle at another
time. I would hope that the Members
who are coming to the floor to vote on
the Byrd amendment would take into
account the fact that we have tried to
strike a balance. Where there has been
a clear representation on a provision
of a treaty given by an authoritative
representative on behalf of the admin-
istration, that ought to be binding.
That ought to be binding. A future ad-
ministration or the same administra-
tion wanting to alter the common un-
derstanding ought to be -forced to
come back to the Senate to say we
need your consent to this.
Where there is no meeting of the
minds, where there is no common un-
derstanding, where there is ambiguity,
that is another matter. That is up to a
future determination. That is a battle
to be fought out either, certainly in
the political forum, or in a legal one.
But I submit to you that the Byrd
amendment as modified is a compro-
mise that is responsible, it is fairmind-
ed and it ought to be adopted by the
Senate.
I yield back the remainder of my
time.
The PRESIDING OFFICER (Mr.
LEAH). The Senator's time has ex-
pired.
Mr. BYRD. Has all time expired?
The PRESIDING OFFICER. The
Senator from Pennsylvania has 3 min-
utes and 42 seconds remaining.
The Senator from Pennsylvania is
recognized.
Mr. SPECTER. Mr. President, the
distinguished Senator from Maine
makes a persuasive argument, but the
difficulty with the argument is the
context of the origin of the Biden con-
dition, and then the Byrd condition.
The condition is backed by some 23
pages of legal analysis in the commit-
tee report which is totally flawed.
The analysis in the committee
report refers repetitively to the ABM
Treaty. The Biden condition was in-
serted into the committee report and
is on the floor today because of con-
cerns which had arisen as a result of
the ABM Treaty.
The interpretation of the board in-
terpretation came about at a time
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
after the National Security Council
,and McFarlane had made a statement
about the intent to have broad tests
and the motivation was suspect at that
time. But I submit that a close reading
of the record, the negotiating record
and the subsequent practice of the
parties, supports the broad interpreta-
tion.
Where the committee report con-
cedes that it is really unnecessary to
have this condition at all and where it
treats international law on treaty in-
terpretation and constitutional law on
treaty ratification and such, I would
urge the Members of this body to
reject the condition.
I thank the body, I thank the Chair,
and if there is any time left, I yield
the remainder.
Mr. DIXON. Mr. President, what is
at stake here is of fundamental impor-.
tance. The committee condition af-
firms the Senate's constitutional role
in the treaty-making process.
The treaty power of the Senate is
derived directly from the Constitution.
The Constitution's treaty clause states
that the President "shall have power,
by and with the advice and consent of
the Senate, to make treaties, provided
two-thirds of the Senators present
concur."
This language is very clear. The
Senate is provided an essential role in
the treaty-making process. The Execu-
tive cannot act to make a treaty with a
foreign country without the Senate.
There is no treaty until the Senate
consents to it.
The traditional understanding of
this process is that after the Executive
negotiates a treaty, it then presents
the proposed treaty and explains it to
the Senate. On that basis, the Senate
then gives consent for the treaty to be
ratified.
For the Senate's role to be meaning-
ful, the Executive's authoritative rep-
resentations of a treaty's meaning
must be binding. These representa-
tions are a fundamental component of
the common understanding between
the Executive and the Senate on the
meaning of the treaty. The Senate's
consent decision is based on this
common understanding. Therefore,
the importance of the Senate's role in
the treatymaking process is based on
the principle that the Executive will
use the same interpretation to carry
out the treaty that it presented to the
Senate. Without this understanding,
the role of the Senate in making trea-
ties is nullified.
?This is exactly what the Sofaer doc-
trine, asserted by this administration,
threatens to do. The Sofaer doctrine
claims that what the Senate is told in
the process of consenting to a treaty, is
not in itself binding in determining
the subsequent obligations of the Ex-
ecutive in carrying out the treaty. In
other words, this doctrine asserts that
the Executive ?can come before the
Senate, make authoritative represen-
tations as to the meaning of a provi-
sion of a treaty, clearly stated and put
on the record, and then, after ratifica-
tion, say that the representation can
be ignored.
In testimony before a joint Foreign
R,elations-Judiciary hearing, Judge
Sofaer went so far as to say: "When
the Senate gives its advice and consent
to a treaty, it is to the treaty that was
made, irrespective of the explanation
the Senate. was provided."
Accordingly, the Executive would
have the power to unilaterally reinter-
pret a treaty. The practical effect of
the Sofaer doctrine would be to make
the Senate's role in the treaty process
meaningless.
In my view, the Sofaer doctrine is an
assertion of power by the Executive
that has no basis in the treaty clause
of the Constitution. This committee
condition is no more than the Senate's
refusal to concede to the President a
power which he is not granted by the
Constitution, and which no previous
Executive has ever asserted.
If the Senate were to acquiesce to
the Sofaer doctrine, the Senate would
undermine its own role in the treaty-
making process. I Want to be absolute-
ly clear on this point: The Senate
would become irrelevant to the treaty-
making process. The only way for the
Senate to prevent becoming irrelevant
would be to attach elaborate and nu-
merous conditions to treaties in order
to have the Senate's understanding
become an integral and explicit part of
the ratification documents. I believe
that such a procedure would so over-
burden our treatymaking process that
it would be unable to effectively func-
tion.
Mr. President, this conditon is based
on sound constitutional logic, and will
assure that the Senate's role in treaty-
making is maintained. It will prevent
the Executive from acting unilaterally,
without the consent of the Senate, to
reinterpret this treaty.
What this committee condition does
is really rather limited. We are not in-
sisting that ambiguities, ? and issues
that did not arise during the ratifica-
tion process, be resolved in the
manner Congress sees them at the
moment.
We are saying that ratified treaties
are the law of the land, and because
treaties are the law of the land, the
President may not unilaterally change
them. That is the point which is fun-
damentally important.
The committee condition is not at-
tempting to supplant the power of the
President in the treaty process, it is
simply reaffirming the proper role of
the Senate.
The issue here is not partisanship, it
is preservation of the power of the.
Senate defined by the Constitution.
The question is fundamental: Should
the Senate have a meaningful role in
the treatymaking process? The answer
provided, in no uncertain terms by the
Constitution, is "yes." I agree.
Therefore, I urge my colleagues to
support this condition.
S 6781
The PRESIDING OFFICER. The
Senator from Kansas.
Mr. DOLE. I wonder if I may pro-
ceed for 5 minutes.
Mr. BYRD. Mr. President, I ask
unanimous consent the distinguished
Republican leader may have 5 minutes
and I may have 3.
The PRESIDING OFFICER. Is
there objection? Hearing none, the
Senator from Kansas has 5 minutes
and the Senator from West Virginia, 3.
Mr. DOLE. Mr. President, let me say
at the outset that I am not an expert,
as many are in this Chamber, on the
interpretation issue. Obviously honest
men can have honest disagreements.
There are probably still some disagree-
ments in this Chamber.
I want to applaud those who have
taken the time, as many have on each
side of the aisle, to really get into this
issue, read the cases, understand it
fully. We did not do that in the last
several hours but we have had a lot of
meetings. I certainly want to commend
my friend from Pennsylvania, Senator
SPECTER, who has been working night
and day on this issue for the past sev-
eral months.
As I have discovered over the years,
there are about three ways in this
body to deal with disagreements.
We can argue and argue and argue,
ad infinitum; and produce little but an
especially fat edition of the CONGRES-
SIONAL RECORD. Or we can put down
our honest differences in pretty stark
form, and then vote?up or down,
winner take all.
Or, finally, we can look for compro-
mise. It seemed to me after several
hours of meetings that was our only
real choice, if we wanted to get this
treaty done, without a truly dangerous
and damaging amendment attached to
it.
I want to correct any misunderstand-
ing. The White House is not support-
ing this compromise. There may have
been some indication that it is the
case. They are not up here opposing it
actively but they are not supporting it.
We were pleased when Senator BAKER
came in and made the case for the ad-
ministration. They wanted some
changes. They wanted some changes'.
we dia not give. Some of the changes
were made: compromise.
So I think if I had my way this
amendment would not be on this
treaty. I do not think it even belongs
here. But I know who is in the majori-
ty and I know where the votes are and
I knew that the majority leader felt
strongly about this issue on one side.
Many others felt strongly on the other
side.
Let me say up front: I don't think
this treaty is the place to deal with
this issue at all. We have differences
on the ABM issue, and on the broader
constitutional question?we should
have agreed to fight those out, or
work those out, without putting this
very important nuclear arms reduction
agreement in jeopardy at all.
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S 6782 CONGRESSIONAL RECORD ? SENATE
That would have been the best
course, by far. But it just was not a
real option, because of the strong de-
termination of our opponents to put
their amendment on this treaty; and
because they may well have had the
votes to do what they wanted.
So the simple facts are: We were
going to vote on this issue on this
treaty; and?on the underlying amend-
ment standing alone?we were prob-
ably going to lose.
If we invoked cloture, we would have
acted on it. Had we not invoked clo-
ture, we would do what we are doing
now. Sooner or later, we were going to
act on this amendment. And that is
what we are doing now.
And so we did the best we could. The
result, to me personally, is far from
the best solution; again, I suggest I am
not the constitutional scholar. But to
me, sincerely, it is the best we can
achieve.
We ended up with a better result
than we started with. The majority
leader and? others on that side were
willing to make some concessions. I
think one key provision and one addi-
tion was what we call subsection (4). It
was an initiative of the distinguished
Senator from Maine, Senator COHEN.
That provision makes clear, at least
it does to me, that the decision we are
Making on this, treaty applies solely to
this treaty and does not prejudice our
position on the ABM interpretation
issue at all.
I thank the Senator from Maine for
his contribution.
It is my understanding, based on the
conversations?and I do not believe I
missed much of any of the meetings,
that was pretty well the feeling of
most participants, Republicans and
Democrats?that that was the effect
of that subsection (4).
Another major improvement that
was made during our negotiations was
the reaffirmation of subsection (2),
that treaty interpretation first and
foremost depends upon the text of the
treaty, and the provision of the resolu-
tion of ratification. That is a key reaf-
firmation of a very important princi-
ple and, again, we made a slight
change today by numbering one first,
one second. We argued whether it
would be first, second, primarily, sec-
ondarily, whatever. We ended up first
and second.
On the bottom lines, what is going
to prevail in the final analysis, the
Senator from Pennsylvania made clear
time after time, is the Constitution.
Mr. President, may I have 2 addi-
tional minutes?
Mr. BYRD. Mr. President, I ask for
the distinguished Senator from
Kansas?Russell, KS?to have at least
2 additional minutes.
The PRESIDING OFFICER. The
Senator from Russell, KS, is recog-
nized for 2 additional minutes.
Mr. DOLE. We have two Senators
from Russell, KS.
Mr. BYRD. Right now it is this one.
[Laughter.]
Mr. DOLE. I do not think we are
going to have any impact on the Con-
stitution whatever happens to this
amendment. I do believe we are
making a record?I am not making a
record?but a record has been made by
those who are experts in this area. We
have had a number of Members par-
ticipate in this particular area, and not
all who contributed will support the
final product.
The Senator from California, Sena-
tor WILSON, was there and was very
helpful. He is not going to vote for the
final product, but I am.
I indicated to the majority leader it
seemed to me that , we had made some
progress, and the question is whether
we are going to come out here and just
have a partisan bloodletting and go
back to the original amendment, or
whether we are going to try to modify
it the best we can and try to get some
bipartisan support.
I want to say one special word about
the Senator who has played a lead role
In this whole process, the distin-
guished Senator from Delaware [Mr.
BIDSN]. While he happened to be on
the other side of this issue, all of us
regret his absence, and we look for-
ward to his speedy return.
Mr. President, this has been serious
business. This is a very, very impor-
tant issue. I think this compromise
will permit us to avoid a collision on
the first and open the door to finish-
ing the work on the second. So we can
now provide the President a finished
treaty, and I hope, as I said to the ma-
jority leader just a few moments ago,
as he said to me I guess, maybe the
way things are moving, continue to
move, we may complete action maybe
as early as 10 o'clock this evening.
That is what the work behind the U.S.
Senate is all about.
I am pleased that we have come this
far, and I am pleased that my distin-
guished colleague from Alaska, Sena-
tor STEVENS, Will also be supporting
the compliments.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER. The
Senator from West Virginia.
Mr. BYRD. Mr. President, in this
Senator's view, the preservation of the
institutional role of this Senate in the
making of treaties is more important
than this treaty itself because there
are going to be other treaties long
after all of us have shuffled off this
mortal coil. I want this Senate's role
under this Constitution to be forever
uneroded. That is my main interest in
this amendment.
It does not make any difference as to
what party is in power in the White
House. This is not a partisan amend-
ment, as far as I am concerned. After
January the 20th of next year, if we
have a Democratic President, I do not
want even that President to be able to
reinterpret this treaty. You will then
see some fast shuffling of feet on the
part of some of those today who have
stood on the other side to oppose this
amendment. They will be on the other
May 26, 1988
side of the issue then, but this Senator
will be right here where he stands
today.
Presidents will come and go, but the
Senate will remain, and the Constitu-
tion will remain.
Mr. President, this amendment pro-
vides that this treaty will be interpret-
ed on the basis of the common under-
standing, the shared understanding
that is reached between the Senate
and the President, through his repre-
sentatives, at the time the Senate gave
Its advice and consent.
How will we interpret the treaty?
First, by the text. We will go to the
four corners of the treaty itself; then
we will go to the resolution of ratifica-
tion because this Senate does not vote
on any treaty. It votes on the resolu-
tion of ratification. It may amend the
treaty, but it can vote only on the res-
olution of ratification. That is where
the Senate speaks. Then it goes to the
authoritative statements and represen-
tations of those who speak for the ad-
ministration in power.
If there is an explanation to be de-
sired, if there is something to be clari-
fied and it is not in the text of the
treaty, we have to depend upon those
who represent the President to ex-
plain what was negotiated.
Mr. President, if we cannot believe
them, to whom can we turn?
Mr. President, how much time do I
have remaining?
The PRESIDING OFFICER. The
time of the Senator has expired.
Mr. BYRD. I ask for 3 additional
minutes.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, we are
today . making this treaty binding on
this administration after the treaty is
ratified and binding on the next ad-
ministration and on and on.
Mr. President, the Senate must be
able to rely upon the authoritative
statements of those representing the
- administration that made the treaty,
else the words "advice and consent" in
the Constitution amount to nothing
because the treaty's meaning will
depend on who is in the White House
at a given moment.
This Senate has an equal role with
the President in the making of trea-
ties. Those words were not written
into the Constitution by the framers
to be only symbolic words. They were
to have meaning, and I am not willing
to surrender that Senate role to any
President of any party. I am for this
institution first, last, and always, inso-
far as its role under the Constitution
is concerned.
It would seem to me that the admin-
istration that made this treaty would
want the next administration and the
next administration thereafter to be
bound by the treaty that is made by
this administration. That is what I am
fighting for today, not so much as to
what administration or what party,
but rather that this Senate be able to
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Alety 28, 1988 CONGRESSIONAL RECORD ? SENATE
rely upon administration witnesses
who come before it to explain the
,things that it cannot understand
about the treaty and about which it
needs clarification.
I want this Senate to be able to
depend upon those of any administra-
tion who come here to represent that
administration as to the meaning or
the interpretation a words or phrases
or terms in a treaty. I am not for any
erosion of that power.
It shakes me a little bit, Mr. Presi-
dent, when Senators reduce the Con-
stitutional role of this institution to
partisan terms. I believe that every
Senator first, last, and always ought to
stand for this institution and its role
under the Constitution, and we ought
to carefully and zealously guard that
role against any erosion from any
quarter, from any party. That is pre-
cisely my interest in this amendment.
I want to see a better treaty, and this
treaty is a better treaty by virtue of
this amendment because once the
Senate has given its advice and con-
sent to this treaty and the treaty has
been ratified through the proper ex-
change of the instruments of ratifica-
tion, this treaty cannot be reinterpret-
ed by the next administration or any
subsequent administration. The Senate
will have assured that.
Mr. President, how much time do I
have remaining?
The PRESIDING OFFICER. The
time of the Senator from West Virgin-
ia has expired.
Mr. BYRD'. Mr. President, I talked
longer than I intended. I ask for 2 ad-
ditional minutes.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. I yield to the Senator
from Georgia.
Mr. NUNN. Mr. President, Ambassa-
dor Gillman committed as to any au-
thoritative statement made before our
committee which was in conflict in the
Armed Services Committee as wit-
nesses testified, they would review
that, they would diligently pursue it,
and before the Senate voted on final
consent to ratification they would let
us know if there was a conflict or any
error or omission. Secretary Shultz
made the same statement to the For-
eign Relations Committee. So before
we vote on this, hopefully tonight or
tomorrow, if there are any omissions
or errors in the presentation the ad-
ministration made on this treaty, they
have an affirmative duty to come for-
ward and to let us know of them.
Mr. BYRD. Mr. President, I ask
unanimous consent for 2 minutes so
that the distinguished Republican
leader and I may have an exchange.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
? Mr. BYRD. Mr. President, I hope
that the Senate can complete work on
this treaty yet this evening. If the
Senate could complete work on this
treaty this evening and if we could
arrive at some understanding that
would allow us to dispose of the DOD
, authorization bill?and this should not
take long?if we could have an agree-
ment dealing with the amendment
that is presently pending to that bill,
the Senate would not come in tomor-
row or the next day.
Now, I wonder if the distinguished
Republican leader can indicate what
his feelings are in that regard, and if
we can have some understanding as to
how many amendments remain we
may know whether or not that is
achievable.
Mr. DOLE. Mr. President, if the ma-
jority leader will yield, there are 15
listed amendments, but I have to say
there are probably about 8. I think
some of those 8 could be disposed of
within a minute or 2, but there are
probably 4 that will require rollcall
votes. There is an amendment by.Sen-
ator HELMS, and we hope to take that
up next. There was an objection on
that side to a time agreement, but
Senator HELMS will accept 1 hour.
There is a Wilson amendment on
which there will probably be a rollcall
vote. There is a Wallop amendment
that might require a rollcall vote, and
perhaps a Pressler amendment that
might require a rollcall vote. And then
there would be the rollcall vote on the
resolution of ratification.
I do believe that we could move very
quickly on those if we can get worked
out whatever problem may remain on
the Helms declaration amendment. On
the DOD authorization bill I know
there have been Members on both
sides working all afternoon in good
faith to see if they could come to some
resolution. There is one caveat
though, and I know the majority lead-
er's feeling about bringing up the
trade bill veto. We hope that if we are
going to dispose of the DOD bill, we
could also vote on the veto message
before we recess.
Mr. BYRD. Mr. President, I thank
the distinguished Republican leader.
Would he indicate, if he has the list
there on those amendments?and he
did indicate the substance of some Of
those amendments?would he please
indicate the substance on all so that
we all may know what type of amend-
ments remain?
Mr. DOLE. The Helms declaration is
a START-related amendment. In
other words, go cautiously on START.
The Quayle amendments, I would give
the numbers, 2243 and 2244, which are
, at the desk; the Wilson amendment
dealing with article XIV. That is non-
circumvention. That may go into an-
other amendment. A Wilson amend-
ment on obligation. As I understand,
the provisions which apply to us would
also apply to the Soviet Union. It
should not take long to dispose of
that; the Wallop-Karnes amendment,
which is on compliance, and I know
they are working out some differences
with the administration and maybe
others who have problems; the Symms
amendment dealing with end strength,
and--I think he has been discussing
that with Members on that side, and a
S 6783
Symms amendment dealing with cost
line. I do not know what cost line is,
but I think he has also been working
with Senator NUNN and others; the
Pressler amendments, 2101 and 2103. I
do not know what they are, but those
are the numbers. Then there are three
Dole amendments. I am not certain if
any will be offered. One is on the
double negative. That is a category II
amendment. It will not be offered if
Senator WALLOP offers a double nega-
tive amendment; a Lugar amendment
dealing with Vienna, Moscow, and
Geneva. I think that amendment has
been taken care of in the earlier Nunn-
Warner-Lugar-Pell-Cohen-Boren-
Helms amendment. And then the
Specter amendment that is on treaty
interpretation.
Mr. BYRD. Mr. President, the dis-
tinguished Republican leader has out-
lined a number of amendments, a good
many of which I believe he earlier said
he thought would not be called up. Is
it reasonable to think that we might
be able to reach a conclusion on this
treaty, say, by 10 o'clock, 10:30 to-
night?
Mr. DOLE. That is possible. What
we are doing now, we are going back to
?each one of the amendments to see if
Senators are actually going to offer
two or one, and I should have that in-
formation available at the time we
finish the rollcall vote.
Mr. BYRD. Very well.
Mr. DOLE. If I can take it up later.
Mr. BYRD. I appreciate that. I do
not think there are any further
amendments on this side. Mr. Presi-
dent, we have the cloture motion still
to be voted on today unless we can
find a way to vitiate it. I ask unani-
mous consent that the cloture motion
not be voted on prior to 6:45 p.m.
today.
The PRESIDING OFFICER. Is
there objection? The Chair hears
none, and it is so ordered.
All time has expired.
Mr. WILSON. Mr. President, I ask
for the yeas and nays.
The PRESIDING OFFICER. 'Is
there a sufficient second?
The yeas and nays were ordered.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment of the Senator from West Virgin-
ia. The clerk will call the roll.
The assistant legislative clerk called
the roll.
Mr. CRANSTON, I announce that
the Senator from Delaware [Mr.
BIDEN] is absent because of illness.
The PRESIDING OFFICER. Are
there any other Senators in the Cham-
ber who desire to vote?
The result was announced?yeas 72,
nays 27, as follows:
Adams
Baucus
Bentsen
Bingaman
Boren
Bradley
(Rollcall Vote No. 158 Ex.]
YEAS?"72
Breaux
Bumpers
Burdick
Byrd
Chafee
Chiles
Cochran
Cohen
Conrad
Cranston
D'Amato
Daschle
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S 6784 CONGRESSIONAL RECORD ? SENATE
DeConcini Johnston Proxmire
Dixon Kassebaum Pryor
Dodd Kennedy Reid
Dole Kerry Riegle
Domenici Lautenberg Rockefeller
Durenberger Leahy Sanford
Exon Levin Sarbanes
Ford Lugar Sasser
Fowler Matsunaga Shelby
Glenn McConnell Simon
Gore . Melcher Simpson
Graham Metzenbaum Stafford
Harkin Mikuiski Stennis
Hatfield Mitchell . Stevens
Heflin Moynihan Trible
Heinz Nunn Warner
Helms Packwood Weicker
Inouye Pell Wirth
NAYS-27
Armstrong Hecht Pressler
Bond Hollings Quayle
Boschwitz Humphrey Roth
Danforth Karnes Rudman
Evans Kasten Specter
Garn McCain Symms
Gramm McClure Thurmond
Grassley Murkowski Wallop
Hatch Nickles Wilson
NOT VOTING?I
Biden
So the amendment (No. 2305) was
agreed to.
Mr. LUGAR. Mr. President, I move
to reconsider the vote by which the
amendment was agreed to.
Mr. WILSON. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
Mr. PELL addressed the Chair.
The PRESIDING OFFICER. The
Senator from Rhode Island.
Mr. PELL. Mr. President, I pay spe-
cial attention and recognition to Sena-
tor BIDEN, who is not with us today in
person but whose extensive work, lead-
ership, and desires are in the measure
now before us. It was he who took a
leadership role last year in focusing
our attention on the dimensions of the
treaty interpretation issue through
the hearings held jointly by the For-
eign Relations and Judiciary Commit-
tees. It was he who took the lead in
drafting a condition on the INF
Treaty that would make necessary af-
firmation of constitutional principles
concerning treaty interpretation.
The only difference is the addition
of a corollary, the answers to which
are already stated in the committee
report that was, as the substitute
states, more formal. This corollary,
Cohen corollary, is consistent with the
intent of making of the original condi-
tion. Otherwise, the substitute is in no
respect the functional equivalent of
the original Biden condition. The
strange thing is that, in the final nego-
tiations with the administration on
the substitute, the administration
found itself on several points arguing
In favor of the language of the origi-
nal Biden condition as being more
carefully conceived than possible al-
ternatives. ,
In closing, I wish to acknowledge the
extensive efforts of other committee
members, particularly Senators SAR-
BANES, CRANSTON, DODD, and KERRY,
and the work and determination of
Senators BYRD, Nur, and LEVIN, all
of whom made possible the moving
forward of the Biden interpretation.
Mr. BYRD. Mr. President, may we
have order?
The PRESIDING OFFICER. The
majority leader is correct. The Senate
Is not in order. The Chair will not pro-
ceed until the Senate is in order.
Under the previous order, the major-
ity leader is to be recognized, and the
Chair recognizes the majority leader,
but will withhold until we can get
?order in the Chamber.
Mr. BYRD. Mr. President, I believe
that the order was for the Senate,
without further debate or action, to
Immediately vote on the underlying
committee condition to the resolution
of ratification.
The PRESIDING OFFICER. The
majority leader is correct. The Chair
wanted to obtain order before it posed
that.
? Under the previous order, the ques-
tion now occurs on the committee con-
dition to the resolution of ratification,
as amended. The yeas and nays have
not been ordered.
The committee condition to the res-
olution of ratification, as amended,
was agreed to.
Mr. BYRD. Mr. President, I move to
reconsider the vote by which the com-
mittee condition to the resolution of
ratification, as amended, was agreed
to.
Mr. DOLE. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
Mr. BYRD. Mr. President, the vote
on cloture has been suspended for an
additional 30 minutes, has it not, until
6:45 p.m. today?
The PRESIDING OFFICER. The
majority leader is correct-6:45.
Mr. BYRD. Mr. President, I hope we
can now have some understanding as
to the number of amendments that
remain and whether or not we will be
able to finish action on the resolution
by 10 or 10:30 this evening.
Also, while I am inquiring, are there
Senators who would call up amend-
ments at this point?
Mr. President, does the distin-
guished Republican leader wish to re-
spond?
Mr. DOLE. We are not quite pre-
pared to do that. But I can say, as I
did before, that Senator Hzuss is
ready with his START declaration
amendment. He is willing to accept a'
1-hour time agreement. He also has an
amendment on troop withdrawal, 20
minutes, and will accept a voice vote
on that.
In the order they are listed: Senator
QUAYLE has two amendments, and I
understand they are colloquys. Sena-
tor WILSON has two amendments and
may offer one of. those. He is now
checking to see if it can be accepted.
Senator WALLOP has one or two
amendments.
Mr. WALLOP. I have one which I
may offer. I do have the compliance
amendment. It is no my wish to take
May 26, 1988
a lot of time. There are several people
on our side who wish to speak to it. An
hour equally divided, I think, would be
sufficient, if we can get it without an
amendment in the second degree.
Mr. DOLE. Senator SYMMS has two
amendments.
Mr. SYMMS. That is correct. There
are two amendments. One deals with
end-strength personnel troops. The
other deals with a line in the DOD
budget.
It Is my hope, I say to the leader-
ship that the Senate Armed Services
Committee will look at these and pos-
sibly be able to accept them. I do not
think there is any controversy. I hope
they can be accepted by the commit-
tee. I do not know whether that has
been worked out yet.
Mr. DOLE. There would probably be
a rollcall vote if they were not accept-
ed.
Mr. SYMMS. I announce to the ma-
jority leader and the minority leader
that on the amendments that were
filed yesterday, some errors have been
pointed out, so I would want unani-
mous consent to modify the amend-
ments, to put them in line with what
we are trying to do.
I just wanted to announce that to
the leader.
Mr. DOLE. Senator PRESSLER has, I
believe, one amendment.
Mr. PRESSLER. Two amendments.
Mr. DOLE. He has two amendments.
They will be what-20 minutes equally
divided' or less?
Mr. PRESSLER. I think I have to
require a rollcall.
Mr. DOLE. On each?
Mr. PRESSLER. Yes.
Mr. DOLE. Then I have three
amendments. I am not certain I will
offer any of the amendments. I will
talk to the Senator from Wyoming. If
he is going to offer the double nega-
tive, I will not offer it. It is his issue.
Mr. WALLOP. Mr. President, if the
Republican leader has one that is
worked out, I will talk with him about
it.
I will say with regard to my amend-
ment I will ask consent that I be per-
mitted to modify it from the verb
"will" to "should."
Mr. BYRD. Mr. President, 8enators
are asking the Senate to modify
amendments. Once cloture is invoked,
no modification can take place. I
would rather not agree to give Sena-
tors permission to modify amendments
until we see whether or not we can get
an agreement worked out because if
we have to go to cloture, those amend-
ments that are filed at the desk are
the only amendments that will be in
order, those that ,were filed in timely
fashion.
Mr. DOLE. The final amendment
would be a Specter amendment on
treaty interpretation, 1 hour equally
divided.
Again, I know that is a fairly good
number. I think we are probably talk:
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May 26, 1988 CONGRESSIONAL RECORD SENATE S 6785
ing about 3 hours of debate and prob-
ably an hour for rollcalls.
Mr. BYRD. That would be 4 hours.
Mr. DOLE. It could extend beyond
that. Depending -on the Senator from
California who indicated to me earlier
he may want to amend the amend-
ment of the Senator from North Caro-
lina. I am not certain how much time
that will take.
Mr. BYRD. I wonder if I could get
unanimous consent now. This was not
the only thing we would do to ;Assure
that no amendments other than the
amendments that the distinguished
Republican leader has enumerated
would be in order on this treaty, and
that that order which I am discussing
would only be valid in the event that
we do not go to cloture and that we do
finally settle on a time agreement, be-
cause if we do not get a time agree-
ment and have to go to cloture, only
those amendments that would qualify _
as being timely filed under the rule
would be valid.
Mr. DOLE. I do not have any objec-
tion, except for a couple questions.
First, we have had a couple of Sena-
tors indicate they want to modify
their amendments. That would not
affect that.
Mr. BYRD. I probably will not have
any objection to their modification.
But I do not want to allow modifica-
tion of an amendment and then find
we go on to cloture and that amend-
ment could be called up is modified
when it was not entered in a timely
fashion at the desk.
Mr. DOLE. Right.
Second, that would not prejudice
anyone as far as a second-degree
amendment if we agree with these.
Mr. BYRD. There will be no second-
degree amendments to those, I would
hope, if we entered into an agreement.
Mr. LEVIN. Mr. President, reserving
the right to object on that, I do have a
second-degree amendment at the desk.
I am trying to work on something with
staff. In the event that Senator DOLE
offers an amendment on conventional
ring and we do not work it out, then I
want the right to offer a second-
degree amendment. I expect we can
work something out. It is just to that
one amendment.
Mr. DOLE. I would say to the distin-
guished committee chairman if we
cannot work it out, I do not intend to
offer it.
Mr. CRANSTON. Mr. President, re-
serving the right to object also, I do
want the right to offer a second-
degree amendment to the Helms
amendment.
Mr. WALLOP. Mr. President, reserv-
ing the right to object, and I shall not,
the only purpose of modification I
seek is to try to make it more accepta-
ble, not less.
Mr. SYM1VIS. Further reserving the
right to object, that is exactly the case
with my amendment, and I think the
modifications have taken away some
objection people have and makes it
more clear what my intention was,
which is not a major change of what
we are trying to do. It can be ex-
plained in 30 seconds of what the pur-
pose of the amendments are.
Mr. BYRD. Mr. President, I ask
unanimous consent that only those
amendments that have been enumer-
ated by Mr. DOLE may remain to be
called up to the resolution of ratifica-
tion.
Mr. CRANSTON. Mr. President, re-
serving the right to object, I do want
my rights to offer a second-degree
amendment to the Helms amendment.
Mr. BYRD. Mr. President, I would
hope we could include Mr. CRANSTON
with an amendment.
Mr. DOLE. I have been notified that
Senator SPECTER now wants a second
amendment, 1 hour equally divided.
Mr. BYRD. That is fine with me.
I ask unanimous consent that before
we get any more telephone calls from
staff people that the amendments that
have been enumerated by Mr. DOLE be
the only remaining amendments to be
called up to this resolution of ratifica-
tion which includes the amendment by
Mr. CRANSTON and the amendment by
Mr. SPECTER.
Mr. DOLE. The second amendment.
Mr. BYRD. Yes.
The PRESIDING 014VICER. Is
there objection?
Without objection, it is so ordered.
Mr. BYRD. Mr. President, I thank
all Senators.
Mr. President, I ask unanimous con-
sent that the vote on cloture be post-
poned to the hour of 7:30 p.m. because
we understand this cloture motion is
still out there. We may have limited
the number of amendments that may
be called up, but we have not limited
debate. So that cloture motion is out
there hanging like a Damocles sword
over all of us.
The PRESIDING OFFICER. Is
there objection?
Mr. WILSON. Mr. President, reserv-
ing the right to object, all I wish to do
is ask the majority leader a question.
Under the request he is propound-
ing, do I understand that the only
second-degree amendment that would
be in order is that offered by the
senior Senator from California to the
Helms amendment?
Mr. BYRD. Yes. The only amend-
ments that remain to be offered,
whether first degree or second degree,
would be those enumerated by Mr.
DOLE. This order does not open up
those amendments to amendments.
Mr. WILSON. I thank the majority
leader.
I do not object.
The PRESIDING OFFICER. Is
there objection?
Without objection, it is so ordered.
Mr. HELMS. Would the Chair state
the unanimous consent? There is so
much noise in the Chamber.
The PRESIDING OFFICER. The
Senator from North Carolina is cor-
rect. The Chamber will be in order.
The unanimous-consent agreement
is there shall be no amendments in
order to the resolution of ratification
other than the amendments enumer-
ated by the distinguished Republican
leader, Mr. DOLE, which 'included a
Cranston amendment to an amend-
ment by the distinguished Senator
from North Carolina, Mr. HELMS.
Mr. HELMS. It is too late, I sup-
pose?may I address the question, Mr.
President, to the distinguished majori-
ty leader? There was so much noise in
the Chamber I did not hear what the
unanimous-consent request was with
respect to the second-degree amend-
ment by the distinguished Senator
from California.
I would hope that I might be able,
even at this late date, to reserve the
right to object, because of the noise,
and include a second-degree amend-
ment of my own. Then it will be a
question of getting recognition, I sup-
pose.
I withdraw it. That is all right. We
will work it out.
Mr. BYRD. Mr. President, I am
sorry that the Senator was not able to
hear. There was a good bit of noise at
that time.
At this point, the order has been en-
tered with only those amendments
that were enumerated, and one by Mr.
CRANSTON was added. I did not say it
could be offered as a second-degree
amendment, but I believe Mr. CRAN-
STON himself asked that it be, and
nobody raised any objections to that.
Mr. HELMS. Well, that is the luck
of the draw. We have had everything
in this Chamber going on except danc-
ing girls. Maybe we will have that
before the evening is over.
Mr. CRANSTON. If the Senator
would will, I hope that perhaps we can
work out an understanding on it where
there need be no amendment offered,
if the Senator can accept what the ad-
ministration has been suggesting to
him and what I would like to suggest
to him.
Mr. HELMS. When you translate
around this place, in terms of this
treaty, when you say "the administra-
tion," you mean the State department,
and that frightens me badly. We will
see. I will certainly be glad to work
with the Senator.
Mr. BYRD. Mr. President, I thank
the distinguished Senator from North
Carolina.
Mr. President, is there an amend-
ment pending? I hope a Senator will
call up an amendment now.
The PRESIDING OFFICER. To re-
spond to the question of the distin-
guished Senator from West Virginia,
there is no amendment now pending.
AMENDMENT NO. 2317
(Purpose: To include in the instruments of
ratification a unilateral declaration of the
United States regarding Strategic Arms
'Reduction Talks) '
Mr. HELMS. Mr. President, I have
an amendment at the desk and I call it
up and ask that it be stated.
The PRESIDING OFFICER. The
clerk- will report.
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S 6786
CONGRESSIONAL RECORD ? SENATE May 26', 1988
The assistant legislative clerk read
as follows: ?
? The Senator from North Carolina (Mr.
Hums), for himself, Mr. Bran, Mr. DoLE
and Mr. SimesoN, proposes an amendment
numbered 2317.
Mr. HELMS. Mr. President, we are
in the same problem.
The PRESIDING OFFICER. The
Senator from North Carolina is cor-
rect. The Senate will be in order. The
Senate will be in order. The clerk will
suspend until the Senate is in order.
The clerk may continue.
Mr. HELMS. Mr. President, I ask
unanimous consent that reading of the
amendment be. dispensed with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
At the end of the Resolution of Ratifica-
tion, insert the following before the period:
provided, further, however, that the fol-
lowing declaration shall be included in any
Instruments of ratification exchanged be-
tween the parties:
'DECLARATION. The United States of Amer-
ica declares that, as an integral factor in its
decision to adhere to this Treaty, it intends
to continue to negotiate with the Union of
Soviet Socialist Republics a treaty effecting
reductions in strategic nuclear forces of the
Parties and, in conjunction with its NATO
allies, to negotiate a treaty effecting reduc-
tions in the conventional forces of NATO
and the Warsaw Pact, and in so doing, that?
It shall be guided by the following principles
and considerations:
(a) A main object of such future treaties
shall be international stability and reduc-
tion of the risk of war by obtaining general
equivalence in the resultant forces of the
Parties;
(b) During any negotiations contemplated
by this declaration, the United States shall
act in close consultation with its allies who
are member states of the North Atlantic
Treaty Organization and with such other
states as appropriate;
(c) Negotiations contemplated by this dec-
laration shall also be conducted in close and
detailed coordination with the United
States Senate, and the Senate should be
kept fully apprised of all significant propos- _
als intended to be made, or made, to the
Union of Soviet Socialist Republics, and,
with respect to such negotiations, the judg-
ments and recommendations of the United
States Senate shall be given plenary consid-
eration and due regard;
(d) The negotiations contemplated by this
declaration shall also seek to secure regimes
of stringent verification and full and exact
compliance which carry forward but
strengthen significantly the verification and
compliance regimes of the present Treaty;
(e) In accordance with the Constitutional
process of the United States, the United
States shall, notwithstanding any presumed
or asserted contrary principle of interna-
tional law, not he bound to adhere to or ob-
serve any treaty contemplated by this decla-
ration until ratification thereof pursuant to
the advice and consent of the Senate;
(f) Pursuant to this declaration, any joint
declaration reached with the Union of
Soviet Socialist Republics of a framework
for the negotiation of the treaties contem-
plated hereby, and such framework itself,
shall serve for the purpose only of guiding
the conduct of the negotiations which the
United States herein has declared its desire
to pursue expeditiously, and shall not con-
strain any military programs of the United
States unless otherwise provided for in ac-
cordance with Section 33 of the Arms Con-
trol and Disarmament Act;
(g) Notwithstanding the other provisions
of this declaration, the United States con-
siders full and exact compliance with the
present treaty and with all other existing
arms control agreements between the Par-
ties to be a major issue affecting i) the pro-
posals and attitudes of the United States
with respect to the future treaties contem-
plated hereby and ii) proportionate and ap-
propriate responses with respect to such ex-
isting-agreements.'."
AMENDMENT NO. 2320 TO AMENDMENT NO. 2317
(Purpose: to include in the resolution of
ratification a unilateral declaration of the
Senate regarding Strategic Arms Reduc-
tions Talks)
Mr. CRANSTON. Mr, President, I
send a second-degree amendment to
the desk and ask for its immediate
consideration.
The PRESIDING OFFICER. The
clerk will report.
The bill clerk read as follows:
The Senator from California [Mr. CRAN-
STON] proposes an amendment numbered
2320.
Mr. CRANSTON. Mr. President, I
ask unanimous consent that further
reading of the amendment be dis-
pensed with.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
The amendment is as follows:
In the pending amendment, strike all
after the word "however" in line 1 and
insert the following: "That it is the sense of
the Senate: that, as an integral factor in the
U.S. decision to adhere to this Treaty, the
U.S. intends to continue to negotiate active-
ly with the Union of Soviet Socialist Repub-
lics a treaty effecting reductions in strategic
nuclear forces of the Parties and, in con-
junction with its NATO allies, to negotiate a
treaty effecting reductions in the conven-
tional forces of NATO and the Warsaw
Pact, an in so doing, that it should be
guided by the following principles and con-
siderations:
"(a) A main object of such future treaties
should be international stability and reduc-
tion of the risk of war;
"(b) During any negotiations contemplat-
ed by this declaration, the United States
should act in close consultation with its
allies who are member states of the North
Atlantic Treaty Organization and with such
other states as appropriate;
"(c) Negotiations contemplated by this
declaration should continue to be conducted
in close and detailed consultation with the
United States Senate, which should be kept
fully apprised, as provided in Section 37 of
the Arms Control and Disarmament Act, as
amended, of all significant proposals made
to the Union of Soviet Socialist Republics,
and with respect to such negotiations, the
judgments and _ recommendations of the
United States Senate shall be given highest
consideration and due regard;
"(d) The negotiations contemplated by
this declaration should also seek to secure
an effective verification regime which builds
significantly upon the verification regime of
the present Treaty;
"(e) In accordance with the Constitutional
process of the United States, the United
States will not be bound to adhere to any
treaty contemplated by this declaration
until ratification thereof pursuant to the
advice and consent of the Senate, but will
have an obligation to refrain from acts that
would defeat the object and purpose of such
treaty;
"(f) Pursuant to this declaration, any
joint declaration reached with the Union of
Soviet Socialist Republics on a framework
for the negotiation of the treaties contem-
plated hereby should guide the conduct of
the negotiations which the United States
'herein has declared its desire tri pursue ex-
peditiously;
"(g) Notwithstanding the other provisions
of this declaration, the United States con-
siders full compliance with the present
treaty and with all other existing arms con-
trol agreements between the Parties to be a
major issue affecting the proposals and atti-
tudes of the United States with respect to
the future treaties contemplated hereby."
Mr. CRANSTON. Mr. President, in
the opinion of this Senator?and I be-
lieve other Senators on both sides of
the aisle?the Helms amendment, in
its original form, places 'unnecessary
apd complicating restraints on our ne-
gotiators that will add to the negotiat-
ing burdens of the Reagan administra-
tion and to the next administration,
whatever party may win the election
this fall.
The provision offered by the Sena-
tor from North Carolina establishes
goals which could help to set up
START or a conventional arms treaty
for defeat in the Senate if either
treaty does not succeed in meeting
these goals, even if the treaty is in
U.S. security interests.
Specifically, I have the following
problems with the amendment as of-
fered by the Senator from North Caro-
lina.
The PRESIDING OFFICER (Mr.
CONRAD). The Senator will suspend for
a moment. Maybe we can return order
to the Chamber so that we can hear
the Senator. We are not going to pro-
ceed until there is order in the Senate
and Senators can be heard.
Believe me, we are not going to pro-
ceed until there is order so Senators
can be heard.
The Senator from California.
Mr. CRANSTON. Mr. President, let
me state again that I have been talk-
ing with Ambassador Glitman
throughout the day. It is plain that
the administration shares many, if not
all, of the concerns that I will now
very briefly express and perhaps they
have some other concerns?I believe
they do?that I will not express. My
principal concerns can be very suc-
cinctly summed up as follows:
The Helms amendment, I believe, is
unwise because It would require the
United States to reject, as a matter of
policy, international law that requires
that parties to a treaty will take no
action contrary to its object and pur-
pose pending ratification.
Second, it would compromise efforts
of President Reagan and/or the next
President?whether Democratic or Re-
publican?to establish interim re-
straint pending final ratification of
START.
Third, it would require prenotifica-
tion of the Senate for "all significant
proposals" before proposing them to
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE S 6787
the Soviets and would require conven-
ing of a Geneva plenary renegotiating
session whenever the Senate has pro-
posals that it wished to be considered.
Senator BYRD spoke eloquently in
the closing of the debate we just had
over the interpretation matter about
the powers of the Senate. He was, of
course, speaking in terms of the sepa-
ration of powers. I believe that this
provision would violate the separation
of powers and would intrude into the
realm of the executive. And, much as
we want to protect our role?the Sen-
ate's role, the legislative role, the con-
gressional role?we also, I believe,
have a responsibility not to unneces-
sarily seek to intrude into the role and
realm reserved to the executive
branch.
Fourth, the Helms amendment
would set as a standard for future
treaties on strategic and conventional
forces a measure of "general equiva-
lence"?which, in the case of conven-
tional talks and hopes for negotia-
tions, is a requirement totally rejected
by our NATO allies. They do not be-
lieve that general equivalence makes
sense in terms of what we hope can be
accomplished in conventional negotia-
tions.
Fifth, the requirement for "exact
compliance" is unrealistic and could
cause trouble if it was taken literally.
Sixth, it makes a sense-of-the-Senate
resolution a binding declaration that
"the U.S. declares"?this is the Senate
declaring, not the United States?and
it requires delivery of policy declara-
tions to the Soviets in Moscow.
Overall, I believe the impact would
be?and I think the administration
shares this view?the impact would be
a chilling effect on efforts to negotiate
the START Treaty that President
Reagan hopes to move forward, to
some degree, before he leaves the
White House. -
There are those who say that this is
unnecessary. It certainly is that.
There are those also who say that no
administration will pay any attention
to this and no Senate will insist that it
be implemented. However, we should
take more seriously what we do or not
do in this body.
Let me cite the authoritative Re-
statement of the Formulations Law of
the United States, volume I, chapter 2,
about the significance of what we do
In matters like this. That authorita-
tive volume makes clear that a decla-
ration and a resolution of ratification
is no mere statement of the Senate's
preferences, it is binding on the Presi-
dent and all future Presidents as a
matter of domestic law.
We should consider that before we
take actions of this sort.
Did the Senator from Tennessee
seek the floor?
The PRESIDING OFFICER. The
Senator from Tennessee.
Mr. GORE. I seek recognition.
The PRESIDING OFFICER. The
Senator from Tennessee.
Mr. GORE. Mr. President, I would
like to speak in favor of the Cranston
second-degree amendment, and I
would like to say to my colleagues
here that I feel this is an extremely
Important matter. Many Americans
are hopeful not only that the INF
Treaty will be ratified but that the
summit meeting about to take place
will see further progress toward a reso-
lution of the far more important con-
troversies in the area of strategic arms
control.
It is toward the prospect of such
progress that the amendment offered
by the Senator from North Carolina
appears to be - aimed. That amend-
ment, the first degree amendment, is a
very skillfully drafted amendment in
the sense that it leaves me wondering
whether what is being offered here is
an innocuous restatement of existing,
and well understood constraints on the
authority of Presidents, or whether it
is an effort to radically limit the au-
thority of this and future Presidents.
The second-degree amendment clari-
fies the matter in a wise fashion. We
cannot take the risk that this lan-
guage will ever be interpreted in the
latter fashion. It must either be clari-
fied in ways that make this impossible,
or rejected.
I draw my colleagues' attention to
two portions of the proposed amend-
ment: sections (e) and (f).
Section (e) says:
In accordance with the Constitutional
process of the United State 6; the United
States shall, notwithstanding any presumed
or asserted contrary principle of interna-
tional law, not bebound to adhere to or ob-
serve any treaty contemplated by this decla-
ration until ratification thereof pursuant to
the advice and consent of the Senate.
The phrase "notwithstanding any
presumed or asserted contrary princi-
ple of international law" is a direct
attack on a very specific concept
which has been an important element
in earlier debates about arms control.
Customary international law, as
codified by the Vienna Convention of
1969, creates an obligation for states
that have signed treaties, to take no
action that would be inconsistent with
such treaties, pending their entry into
force. This means that between signa-
ture and ratification of treaties, the
United States does incur obligations.
So, too, with the Soviets.
If no obligations had existed, Mr.
President, there would have been no
point whatsoever to all the complain-
ing we have heard over the years from
the administration, regarding Soviet
noncompliance with elements of the
signed, but unratified, SALT II
Treaty.
The same would be true of corn-
plaints from the administration re-
garding alleged Soviet violations of
the signed, but unratified TTBT and
PNE Treaties.
As written, the Helms amendment
would have the following effect. It
would vitiate the force of customary
international law as applied to a possi-
ble START and/or conventional arms
control agreement, should either be
accomplished by this or any future
president.
Although such treaties might be
signed, we know only too well that
there can be a prolonged period ex-
tending over years before it is clear
whether such treaties will be ratified.
The issue is whether during this time,
the United States considers itself and
the Soviet Union obliged to respect
the terms of the treaty, or completely
free to act. If the latter, then of course
It will be "Katy, bar the door."
I, therefore, suggest Mr. President,
that section (e) be rephrased and dealt
with in language similar to that sug-
gested by the Senator from California.
In accordance with the Constitutional
process of the United States, the United
States shall, other than as required under
customary international law, not be bound
to adhere to or observe any treaty contem-
plated by this declaration until ratification
thereof pursuant to the advice and consent
of the Senate.
Let me now move on to section (f).
Section (f) anticipates that this or
some future president might one day
reach a joint declaration of principles
or a framework agreement on START
or on conventional forces, with the So-
viets?as a step along the route toward
a completely worked out text. There
are 'some well known precedents: the
Nixon-Brezhnev joint statement of
principles to guide negotiators and the
Ford-Brezhnev accord at Vladivostok.
In this event, the section provides
that any such agreement:
*shall not constrain any military programs
of the United States unless otherwise pro-
vided for in accordance with Section 33 of
the Arms Control and Disarmament Act.
Section 33 of the Arms Control and
Disarmament Act reads as follows:
no action shall be taken under this or any
other law- that will obligate the,.. United
States to diarm or to reduce or to limit the
Armed Forces or armaments of the United
States, except pursuant to the treaty-
making power of the President under the
Constitution, or unless authorized by fur-
ther affirmative legislation by the Congress
of the United States.
I have no objection, Mr. President,
to reiterating the provisions of exist-
ing law. But I submit that the pro-
posed amendment is substantially
broader in the scope of its language
than is the law to which it refers.
There is a nontrivial difference be-
tween the amendment's stricture that
the President may "not constrain any
military programs of the United
States," and the law's formulation
which is limited to actions that would
"disarm or reduce or limit the Armed
Forces or armaments of the United
States."
Moreover, Mr. President, I do not
think we are dealing with theoretical
distinctions. Let me illustrate. Sup-
pose, for example, this or a future
President agrees with the Soviets that
a START treaty yet to be completed
will ban the further testing of nuclear
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S 6788 CONGRESSIONAL RECORD ? SENATE May 26', 1988
weapons. Suppose further, that the
President then wishes to declare a
moratorium on such testing, in concert
with a similar declaration from the
Soviet Union.
Under the amendment, he could not
do so?because this would be a con-
straint on a military program of the
United States. Under existing law, he
could do so, since what is involved is
arguably not disarmament, or a reduc-
tion, or a limit to the Armed Forces or
armaments of the United States.
So, Mr. President, I might not agree
with such voluntary actions by a Presi-
dent, but I believe he has the author-
ity to take them.
Therefore, I believe that section (e)
of the amendment should be as pro-
posed in the second degree amend-
ment offered by the Senator from
California, revised as follows, after the
word "shall":
. . . shall not obligate the United States to
disarm or to reduce or to limit the Armed
Forces or armaments of the United States,
unless otherwise provided for in accordance
with Section 33 of the Arms Control and
Disarmament Act.
Mr. President, I recognize that the
proposed Helms amendment is in the
form of a unilateral declaration of the
United States to be included in the in-
struments of ratification of the INF
Treaty. And in that sense, the amend-
ment has no force to bind the future
behavior of the United States or of the
Soviets.
But, inasmuch as this language
would have the United States declare
unacceptable principles, even theoreti-
cally, I think the Senate should not
adopt the amendment and should, in:
stead, vote in favor of the second-
degree amendment offered by the Sen-
ator from California.
I urge my colleagues to do precisely
that.
The PRESIDING OFFICER. The
Senator.from Rhode Island.
Mr. CHAFEE. Mr. President, I recog-
nize that the amendment of the Sena-
tor from North Carolina is not earth-
shaking in its consequences due to the
fact it is a declaration, unilateral dec-
laration by the United States, and
thus we can observe it or not observe
it.
Nonetheless, it seems to me that it
sets forth 8ome principles therein that
It would be wiser for us not to adopt. I
refer particularly starting with (a).
In (a) it talks about, "We shall seek
international stability and reduction
of the risk of war by obtaining general
equivalents in the resultant forces of
the parties."
Just the use of the words "general
equivalents," Mr. President, seems to
me vague and confusing. It is not clear
exactly what we are saying.
But, Mr. President, I find (c) a more
disturbing provision. In it it says that
"The Senate should be kept fully ap-
prised"?well, nobody will object to
that?"of all significant proposals."
And then it talks about the proposals
that are to be made.
"The Senate shall be kept fully ap-
prised of all significant proposals in-
tended to be made or made to the
U.S.S.R." Yes, it is clear. It would be
nice if it were possible to keep the
Senate fully apprised. But the manda-
tory word "should," it seems to me
goes too far.
Furthermore, it says with respect to
such negotiations the judgments and
the recommendations of the U.S.
Senate shall be given plenary consider-
ation. Clearly, any President does
want to negotiate with the support of
the Senate and will do everything he
can to keep the Senate posted and in-
formed, but it is not possible all the
time, nor do I believe he should be
constrained, any President should be
constrained, in the midst of negotia-
tions with being required first to
notify the U.S. Senate.
I do not find that a meritorious pro-
vision, and that, of course, is one of
the provisions that is removed under
the amendment by the Senator from
California.
Proceeding with (e). What (e) does,
it eliminates the possibility for what
we might call interim restraint. I do
not think that is wise. It seems to me
between (e) and (f), and particularly
(e), that the President might well
reach some constraining agreements
with the Soviet Union that, for exam-
ple, they would not test further weap-
ons or they would agree to the limita-
tions as they currently existed while
they are working on a further agree-
ment, such as the START agreement.
I do not think that (e) is a wise pro-
vision to have in there because it says
that those shall not be observed, re-
gardless of whether the President has
entered into them or not.
Overall, it seems to me, Mr. Presi-
dent, that the language of the Senator
from North Carolina, even though it is
not totally binding on the Senate or
our U.S. Government, is not the best
to have in there. Therefore, I do sup-
port the further- qualifying amend-
ment by the Senator from California.
Mr. LEAHY addressed the Chair.
The PRESIDING OFFICER. The
Senator from Vermont.
Mr. LEAHY. Mr. President, I also
agree with the qualifying amendment
of the distinguished senior Senator
from California. The question is
whether we are in the ninth hour
where We are going to change, basical-
ly, all international law and how trea-
ties are set up, how they are to be ne-
gotiated and what is to be the conduct
of parties, especially major parties
that the rest of the world looks to, like
the United States and the Soviet
Union, what is going to be their prac-
tice, policies during the time they are
negotiating treaties? It would appear
that the administration will not nego-
tiate another arms control agreement
before it leaves office.
It has negotiated this one, albeit as a
minor arms control agreement. It is a
positive step forward and one the ma-
jority of Senators will applaud. But
should we now in the ninth hour, the
ninth hour of the debate suddenly tell
the next administration what will be
their conduct and how they must ne-
gotiate an arms control agreement?
None of us even know whether that is
going to be a Democratic or a Republi-
can administration , but even if we did,
is it appropriate for us to tell them the
rules are about to change, that the
Senate, in fact, will negotiate the
treaty, not the administration? I think
not.
So what we must do is look at this
and suddenly realize in the basic
amendment, the underlying of the dis-
tinguished Senator from North Caroli-
na, we are saying that the power to ne-
gotiate and to act under those negotia-
tions by the President, the Command-
er in Chief, shall be severely con-
strained.
I have heard for the 14 years I have
been here by the proponents of the
underlying amendment that we should
stop trying to tie the hands of the
President. This would tie the Presi-
dent for more than he ever has been,
certainly any time in my lifetime.
Under this, the President could have
his budget plans to spend $2 to $3 bil-
lion on a particular weapon system.
They go into negotiations, they agree:
"Let us not deploy this weapon
system." We agreed not to use it. The
Soviets agreed not to go forward with
one of theirs, but it might be 6 or 7
months before all the ratification pro-
cedures start, before the Senate con-
sents.
Are we saying, "Well, Mr. President,
go ahead and spend the $2 to $3 billion
anyway and the day you ratify that
treaty, assuming the Senate has con-
sented to it, we will give you another
$50 million to $100 million to go out
and dismantle everything you have
built"? Well, that is the height of ab-
surdity. ,
It will do something for the easing
of tensions, but it certainly will do
nothing to ease the budget deficit.
That is one example.
I know the distinguished Senator
from Arkansas wishes to speak. Let me
close with one thing. I might mention
this as sort of an adjunct of this whole
debate on the INF Treaty. I hope that
the members of the press are listening.
I hope that those who write about this
are listening. Just once, Mr. President,
and I have constrained myself for
weeks from saying this on the floor,
just once so everybody will under-
stand: the U.S. Senate does not ratify
the treaty. The U.S. Senate will advise
and consent to it. The President of the
United States ratifies the treaty.
I mention this only because 20 or 30
times a day, I hear on the radio and on
television, or in newspapers I read
about whether or not the U.S. Senate
will or will not ratify this treaty. We
advise and consent to it. I suspect the
President in short due course will
ratify the treaty. I just want it said
that we do not ratify it, the President
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
ratifies it. He does it only if we advise
and consent to it.
Sorry, I could not constrain myself
any further on that, Mr. President. I
held back for 2 or 3 weeks. I just had
to say it. I yield the floor.
Mr. CRANSTON. Will the Setfator
yield? I just want to thank the Sena-
tor from Vermont for the particular
leadership he has given on this issue
of restraint when treaties are in the
works or pending. He and Senator
BUMPERS, Senator CHAFEE, and Sena-
tor HEINZ have together worked very
hard to try to quell this arms race and
to prevent the United States from
doing things that undermine potential
treaties that would reduce the scale,
the cost, and the danger of the arms
race. PATRICK LEAHY has been a great
leader on this front for a long, long
time.
Several Senators addressed the
Chair.
The PRESIDING OFFICER. The
Senator from Virginia sought recogni-
tion first. The Senator from Virginia.
Mr. TRIBLE. Mr. President, I would
like to step back from the two pending
amendments and underscore my sup-
port for the INF Treaty now before us.
This treaty may prove to be the
most lasting legacy and crowning
achievement of the Reagan Presiden-
cy.
The hearings held by 3 Senate com-
mittees over the last 4 months have
underscored the benefits of this
treaty.
For the first time in history, we have
done more than simply reshuffle the
nuclear chess board. INF eliminates an
entire class of nuclear weapons. The
treaty wipes out the most lethal
threat that NATO has ever faced?the
Soviet SS-20?and it requires the Sovi-
ets to destroy roughly four missiles for
every one we give up.
In addition, it will likely enhance the
prospects for an agreement on long-
range nuclear weapons. Because of
INF, we are closer to a START accord.
This treaty also contains the most
comprehensive verification require-
ments ever contained in an arms con-
trol agreement. The Soviets will be
barred from testing missiles. The
United States will have unprecedented
rights of onsite inspection. American
observers will be able to see first-hand
whether the Soviets are keeping their
promises.
Politically, INF is a stunning success
for the Western alliance. NATO suc-
ceeded because it had the will to resist
repeated Soviet attempts to split the
alliance, and because we won major
concessions from the U.S.S.R. As Sec-
retary of State Shultz testified, "histo-
rians may come to see the INF experi-
ence as NATO's finest hour."
These are important advantages,
and they argue strongly for ratifica-
tion. But the treaty's significance goes
much beyond this. The INF process re-
veals much about arms, control, na-
tional security and the requirements
of negotiations with the U.S.S.R.
For the United States alone, the les-
sons are many.
First, decisions taken now on arms
and weapons systems will affect this
nation for years, indeed for decades, to
come. The Dual-Track decision that
began the INF process was made by
NATO in 1979, nearly a full decade
ago. Only now do we realize its bene-
fits.
We must be -mindful of that as we
decide each year which weapons to
build and which to abandon. Short-
sighted decisions, taken now will leave
us vulnerable many years down the
road. They may well force the United
States to negotiate from a position of
weakness rather than strength.
In addition, INF has put to rest the
simplistic notion that building more
weapons is always and inevitably a de-
stabilizing act. How often were we told
that we already had sufficient weap-
ons to destroy the Soviet Union, that
we needed no more?
_ This treaty was won because NATO
built and deployed. Had it ? not, the
Soviet monopoly on INF missiles
would remain, and Western Europe
and the American forces stationed
there would be more vulnerable than
ever.
INF has proved that weapons are
not destabilizing merely because they
enlarge our nuclear arsenal. The
worth of any weapons system must be
judged by its contribution to our na-
tional security. INF demonstrates the
application of that principle to nuclear
arms.
Finally, the INF treaty is symbolic
of the profound change that President
Reagan has wrought in Foreign Af-
fairs?America is ready to lead once
again. For years before the Reagan
presidency, America's ability to lead
the West was in doubt; its will to do so
was questioned. No longer. The United
States is the free world's unquestioned
leader. We no longer shun the mantle
of leadership; we seek it.
Our resolve led to the success of
INF. Year after year, the United
States urged, prodded, and cajoled our
allies to stick with the deployment of
INF weapons. Our negotiators consult-
ed often with NATO leaders about
how the Soviet-American talks were
progressing, where they were headed,
and why it was important to stay the
course. Our West European allies
agreed. They went ahead with the INF
deployment, and they fully support
this treaty.
That is the kind of leadership that
NATO needs and that only the United
States can provide.
But, Mr. President, as America has
been transformed, so too has the
Soviet Union. There, too, new leader-
ship has wrought? new ideas. The
manner of governing the Soviet Union
has changed immensely, and with
good reason.
Mikhail Gorbachev faces immense
difficulties. The Soviet economy does
not work. The costs of empire are stag-
gering. Indeed, the Soviet Union today
has become a muscle-bound Third
World country. Gorbachev recognizes
this, because he must. He has sought
S6789
reforms?not because he dislikes
Soviet Communism but because re-
forming it may be the only way to save
it.
We should welcome these reforms
but we should not underestimate the
impact of those reforms on the future
of the Soviet-American relationship.
They may well make the Soviet Union
more productive, more powerful, and
the more powerful and emboldened
our foe, the more difficult our task.
And Mr. Gorbachev's ability to
attain an INF Treaty is, ironically,
cause for vigilance as well. When in
history has a Soviet leader successful-
ly told his military leaders that he was
going to eliminate an entire class of
nuclear weapons? Gorbachev's ability
to do so speaks volumes about his hold
on power.
These changes in the United States
and the Soviet Union have enormous
Implications, particularly for future
arms control efforts.
The Soviets will be tenacious in
futute arms talks. Their leader has
tightened his grip on the reins of
power. He will be a difficult foe, espe-
cially if his domestic reforms begin to
produce a stronger Soviet economy.
The United States must be prepared.
Mr. President, another central
lesson of INF is that arms control by
legislative decree is unilateral arms
control. Politics ought not to be the
basis of defense spending and arms
control decisions.
We must also be poised to take ad-
vantage of a final lesson of INF. Presi-
dent Reagan has upset two decades of
arms control assumptions. For years, it
has been said that the very best we
could accomplish was to set limits on
numbers of nuclear arms, limits that
we would reach at some distant point
in the future. Not so.
When we negotiate from strength
and when we are prepared to deal with
a tenacious adversary, when we are pa-
tient, we can achieve arms reductions.
We have done so with this INF accord,
but only because we resisted repeated
Soviet attempts to wring concession
after concession from us.
Time and time again, the Soviet
Union laid down a marker, and pro-
claimed that if we failed to give in, the
arms talks would end and we should be
to blame. They demanded linkage to a
host of other issues, including the
strategic defense initiative. Time and
time again, the United States and our
allies refused. And because we pursued
a single goal, we prevailed.
Mr. President, those are the paths
that have brought us to this INF
accord. In voting to ratify this treaty,
we will support much more than its
text. We will vote for much more than
the elimination of intermediate nucle-
ar forces. For we will support a way of
governing that relies on a strong na-
tional defense, a willingness to lead,
and an ability to stand up to an in-
creasingly capable adversary.
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When we are strong, we will be
better able to defend freedom in the
world and keep the peace. We will be
better able to secure those lines that
divide free men from those not yet
free.
The same decisions that enhance our
strength will enhance our ability to
lead. As America asserts her individual
will, we engender a collective will and
support from our allies and friends.
It has taken nearly the entire
Reagan Presidency to achieve this
arms accord. But it stands as a para-
digm on why 'a strong national defense
is so vital; on how to employ a strong
defense policy in the cause of nuclear
arms reduction; on how to unify an al-
liance around that single goal; and
now how to unify an alliance around a
single goal and how to lead an alliance
against a foe that grows more and
more formidable.
That is why this treaty may become
the crown jewel of the Reagan years.
That is why I support it and encour-
age my colleagues to do so.
Mr. PELT.. Returning to the matter
at hand, and the amendment before
us, I have a couple of concerns here,
and if I could ask the Senator from
North Carolina, when he talks about
plenary consideration?
Mr. HELMS. Mr. President, I can an-
ticipate the question. I will say to the
distinguished Senator that that word
was changed to the words "full and
highest level" at the suggestion of the
distinguished chairman of the Armed
Services Committee, Mr. Num.
Mr. PELL. In other words, the docu-
ment we have a copy of is not what it
says here.
Mr. HELMS. I will ask the clerk. On
page 2?
Mr. PELL. The one at the desk says
"Plenary." I would concur with the
Senator from North Carolina if it has
been changed. I know he and I mean
the same thing.
Mr. HELMS. Incidentally, if I may,
Senator?if he will yield to me, I thank
him for doing so?this amendment was
part of the agreement reached yester-
day with the leadership at the time
that I agreed to expedite further con-
sideration and action on the resolution
of ratification. We consulted every-
-body in sight?the chairmen and rank-
ing members of the Intelligence Com-
mittee, of the Armed Services Commit-
tee, and of the Foreign Relations Com-
mittee, and the staffs thereof. We
have worked on this thing for more
than 24 hours.
I thought we had a good-faith agree-
ment about it. But I have heard noth-
ing until the time of the Cranston
amendment in the second degree was
sent to the desk. I had not seen it. We
would have entertained any suggestion
about it and did make a number of
changes,
I might add that the distinguished
majority leader is a cosponsor, as is
the distinguished minority leader and
the distinguished assistant minority
leader. Senators Byan, Doix, and
SIMPSON, respectively, are cosponsors.
You had better believe Senator BYRD
went forward with a fine-tooth comb
and he indicated to me that he liked
it, and obviously did because he au-
thorized me to include him as a princi-
pal cosponsor.
So I am at a loss to understand what
is going on here. But I will say that
the distinguished Senator from Cali-
fornia is well within his rights under
the rule. But I still do not understand
what is going on in the context of an
agreenlent having been reached yes-
terday.
Mr. BYRD. Mr. President, will the
Senator yield?
Mr. HELMS. Yes.
Mr. BYRD. Mr. President, as one
who has probably participated in more
unanimous consent agreements than
has any other human being who ever
served in this Senate, and as one who
will still be active for awhile at least in
trying to get unanimous consent
agreements, let me say for the RECORD
that Senator HELMS, I am sure, was
under a clear impression that he
would get a vote on a freestanding
amendment without an amendment to
it. That was my clear impression as to
what we were doing at the time.
Nobody raised any question about a
second-degree amendment. I did not
give it any thought. I thought we Were
all talking about how we would get the
Senator from North Carolina and
others to release the treaty so we
could get on to the resolution of ratifi-
cation. And with Mr. HELMS, we agreed
that he would have one additional
amendment to the treaty; we could
then go to the resolution of ratifica-
tion, and we could waive the "subse-
quent day" provision in paragraph (c)
of section 1 of rule XXX of the Stand-
ing Rules of the Senate.
He entered into that agreement in
good faith. We were all acting in good
faith. The distinguished Senator from
California, Mr. CRANSTON, was not
present. He is not bound in any way by
what we did, and he is acting within
his rights under the rules.
But I must say that I am chagrined
that there is a second-degree amend-
ment offered to the Senator's amend-
ment. It is done properly within the
rules. Nobody is sneaking up on any-
body. I was a party to these under-
standings, and I was recreant in not
raising the question then as to wheth-
er or not there might be a second-
degree amendment. But I did not. I did
not think about it.
Mr. HELMS. I did not, either.
Mr. BYRD. Many of us who are ac-
customed to working here with the
rules every day cannot possibly think
of everything, every contingency that
might arise, under the pressures and
under the circumstances that envelop
us as we are trying to work out a very
critical and complex arrangement. _
The Senator from North Carolina
expedited the work of this Senate
when he said he would offer one more
amendment on the treaty, and we
could then move to the Resolution 'of
Ratification. He and other Senators
could have kept us on that treaty until
the cloture motion operated, and that
could have been for an additional 30
hours,
So I- really feel badly about this. I
must say to the Senator, and I do not
cast any reflection on Mr. CRANSTON in
saying this. I will tell the Senator that
I have to sit down with other Senators
here and work out these time agree-
ments, and the Senator from North
Carolina gave up a great deal. He gave
up a great deal.
I wish I were the one, let me say
this, who wanted to offer the second-
degree amendment. I would not do it. I
would offer a separate amendment.
But I was there and had the under-
standing that the Senator from North
Carolina would limit his remaining
amendments, among which this one
would be included.
Mr. CRANSTON was not there, and
had no reason to know anything about
the understanding. But it is extremely
difficult, and it makes it difficult in
the future, to get agreements when we
may want them just as badly as we
wanted this one, if something inter-
venes which is unavoidably unfair. In
that sense, I apologize to the distin-
guished Senator.
I am going to vote with him, and
frankly, I hope his amendment is
adopted because I feel somewhat em-
barrassed by this situation. It is no-
body's fault. I could have saved myself
that embarrassment by thinking of
the- possibility of a second-degree
amendment. I did not think of it. The
other Senators in the room obviously
did not think of it. I feel I ought to say
this for the record because I operated,
with complete honesty, absolute good
faith, and I am sorry that this is turn-
ing out this way.
I am going to vote with the Senator.
If there is a motion to table the Cran-
ston amendment, I am going to vote
for that motion to table, not because
the amendment of the Senator from
California is not a worthwhile amend-
ment, not because of that at all, but
because I think that good faith in this
Senate?and the Senator from North
Carolina acted in good faith?is worth
more than any single amendment can
ever be worth. I know the Senator un-
derstands that nobody has operated in
bad faith. This is just a development
that neither he nor I foresaw. But I
know one thing: He did let us off the
hook and so expedited the work on
this treaty for no telling how many
hours when he could have done other-
wise.
I feel a little better, having said that,
and I hope no Senator will take um-
brage-at anything I have said, because
my remarks are not pointed toward
any Senator. I have to face the Sena-
tor and other Senators in the future,
for the rest of the years here, in work-
ing out time agreements and other
matters.
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE S 6791
Mr. HELMS. Mr. President, will the
Senator yield?
Mr. BYRD. The Senator has the
floor.
Mr. HELMS. I thank him very
much.
Let me say, for the RECORD, and I
have said it many times, that nobody
with whom I have ever worked, either
in the Senate or previously, has oper-
ated with more good faith than the
distinguished Senator from West Vir-
ginia. I appreciate him for that and
for many other reasons. I appreciate
his statement on this question.
Mr. PELL. Mr. President, Lthink we
have ground for compromise here on
one thing. I do not think that the Sen-
ator from North Carolina has realized
that it says "plenary consideration," at
the desk. I am sure he does not mean
that any recommendation of the
Senate should be had in plenary ses-
sion in Geneva with the Soviets, which
is what it says now.
Mr. HELMS. If the Senator will read
the dictionary, and I am sure he
has?
Mr. PELL. I have.
Mr. HELMS. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to
call the roll.
Mr. BRADLEY. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The Senator from New Jersey.
Mr. BRADLEY. Mr. President, the
underlying amendment offered by the
distinguished Senator from North
Carolina raises a number of questions
in my mind, but one of them relates to
section (c), in which the amendment
states:
Negotiations contemplated by this decla-
ration shall also be conducted in close and
detailed coordination with the United
States Senate, and the Senate should be
kept fully apprised of all significant propos-
als intended to be made, or made, to the
Union of Soviet Socialist Republics and,
with respect to such negotiations ? ?
As I read this section of the amend-
ment, the President of the United
States, President Ronald Reagan,
during the summit meeting in the
coming week, would be unable to even
discuss START negotiations.JOn the
face of it, this is absurd.
Why should the Senate handicap
the President of the United States
from discussing START negotiations
in Moscow in the coming week? I do
not know if it is the intention of the
Senator from North Carolina to handi-
cap the President of his own party in
negotiations with the Soviet Union,
but clearly this is what this amend-
ment says.
I would hope that we could proceed
by adopting the Cranston amendment,
and if that fails, reject the amendment
of the Senator from North Carolina.
There are a number of other reasons
why it should be rejected, but the one
at this moment that is to my mind
most important is that it would shack-
le President Reagan in his discussions
with Mikhail Gorbachev.
I hope the Senator from North
Carolina does not want to do that.
Mr. President, I would hope that we
would reject the amendment of the
Senator from North Carolina.
Frankly, the INF Treaty, the discus-
sion about the INF Treaty, I think,
should not be a vehicle for a lot of
non-INF Treaty -issues.
Those are two reasons why, in my
view, the Cranston amendment should
be selected and adopted, and the
amendment of the Senator from
North Carolina should be rejected.
The amendment of the Senator from
North Carolina is precisely the wrong
signal for the U.S. Senate to send; as
the President of the United States is
heading toward Moscow. The summit
is clearly going to be in an atmosphere
In which some START negotiations
are taken. If the Senate adopts this
amendment, we are telling the Presi-
dent: "No, Mr. President, you can't
even discuss any aspect of the START
negotiation unless the U.S. Senate has
been fully informed." The language
says that the proposals intended to be
made should be shared with the U.S.
Senate. I think it is enormously short-
sighted.
Mr. HELMS addressed the Chair.
The PRESIDING OFFICER. The
Senator from North Carolina. .
Mr. BYRD. Mr. President, will the
Senator yield to me?
Mr. HELMS. I yield.
Mr. BYRD. Mr. President, I ask
unanimous consent that the vote on
the motion to invoke cloture occur 3
minutes from now; if this request be
objected to, that it be suspended until
the hour of 8:30 p.m. today.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. HELMS. Mr. President, I think I
have an answer to the confusion about
the amendment.
There were two amendments. One
was submitted after my discussion this
morning with Senator Norm.
I ask unanimous consent that on
page 2 of the amendment, line 19, the
word "plenary" be stricken and the
words "full and highest level" be in-
serted, making it read, "shall be given
full and highest level consideration
? and due regard."
Mr. BRADLEY. Mr. President, re-
serving the right to object, will the
Senator repeat where the change is?
Mr. HELMS. I say to the Senator
that this is precisely the language sug-
gested by Senator Nurn.r, after consul-
tation with several Members on the
side of the Senator from New Jersey.
On page 2, line 19, the word "plena-
ry" is stricken and the words "full and
highest level" inserted.
Mr. BRADLEY. Mr. President, I
object.
The PRESIDING OFFICER. Objec-
tion is heard.
Mr. CRANSTON addressed the
Chair.
The PRESIDING OFFICER. The
Senator from California.
Mr. CRANSTON. Mr. President, in
deference to the majority leader's
views, in deference to the views of
others who feel there were some good-
faith negotiations with the Senator
from North Carolina, I am going to
make a suggestion.
Nobody has charged anybody with
bad faith here. I was not involved in
the negotiations. The staff of the For-
eign Relations Committee, incidental-
ly, was not involved in the negotia-
tions. The Senator may have mistaken
other staff for Foreign Relations Com-
mittee Staff, but they were not in-
volved.
The Senator apparently felt that he
would have a chance to have a vote on
something that he would offer relat-
ing to START, and others feel that
they made that commitment to him.
I will be willing to withdraw my
second-degree amendment so that we
can continue to debate this and then
have a tabling motion on the proposal
of the Senator from North Carolina so
then we will get a sense of where we
are on this. 'So I will do that after I
make one more point as to where I
feel that the amendment offered by
the Senator from North Carolina is
very unwise. It would shackle Presi-
dent Reagan right now on the eve of
his going to Moscow. He would be
unable to discuss START in any way
In Moscow because section (c) of the
proposal of the Senator from North
Carolina reads:
Negotiations contemplated by this decla-
ration shall also be conducted in close and
detailed coordination with the United
States Senate, and the Senate should be
kept fully apprised of all significant propos-
als intended to be made, or made, to the
Union of Soviet Socialist Republics and,
with respect to such negotiations, the judg-
ments and recommendations of the United
States Senate shall be given plenary consid-
eration and due regard:
The Senate has not been apprised in
any formal manner and I do not think
very much in any informal manner of
what the- President and his people
might discuss in regard to START
with the representatives of the Soviet
Union in Moscow. So we would be
saying no discussion of START. A
prime purpose of the President's mis-
sion, as I understand it, has been to
try to move us along toward deeper re-
ductions than are bought about by
INF.
I think it would betray the hopes of
the people of this country and the
hopes of the people of the world to
end this nuclear arms contest before it
ends us, if we say to the President,
"You cannot discuss this in Moscow."
I trust that Republicans will share
the viewpoint of this Democrat on
that subject and not shackle the Presi-
dent.
?
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S 6792 CONGRESSIONAL RECORD ? SENATE
That is part of what is at stake. It is
not all of what is at stake. The admin-
istration has its own very grave con-
cerns about all this and it does not
support the proposal of the Senator
from North Carolina. It does support
efforts to modify it along the lines of
what I have proposed.
But having said all that in the inter-
est of comity and in the interest of
finding out where we stand on all this
and interest of dealing with the prob-
lems of those who feel that some sort
of an agreement to which I and others
were not a party would be violated if I
persisted in offering my second-degree
amendment, I withdraw my second-
degree amendment.
The PRESIDING OFFICER. Is the
Senator from California proposing a
unanimous consent request to with-
draw it?
Mr. CRANSTON. I do not think I
need it. We have not had the yeas and
nays on it.
The PRESIDING OFFICER.. It does
take unanimous consent.
Mr. CRANSTON. I ask unanimous
consent.
Mr. LEAHY. Mr. President, reserv-
ing the right to object, and I shall not
object because it is the prerogative of
the Senator from California to make
his request if he wants.
Certainly, when you have negotia-
tions around here, one of the most im-
portant things is that negotiations
always are in good faith. I realize
there is no way for everybody to keep
track of everybody's interest, but this
amendment of the distinguished Sena-
tor from North Carolina has parts of
it that are just very, very directly re-
lated to a resolution amendment that
has been in here a number of times,
the Bumpers-Leahy-Chafee-Heinz. I
am not aware that Mr. BUMPERS, Mr.
HEINZ, Mr. CHAPEE, or I were in any
way involved in the negotiations. I
think had we been it would have
raised the same concerns that Senator
CRANSTON has raised here, and I men-
tion this only because the matter of
arms control is of paramount interest,
I think, to all Senators, not just some.
Many have expressed a great deal of
interest in certain aspects of arms con-
trol. Involving them in such negotia-
tions would probably avoid the confu-
sion here.
I suggest everybody acted in good
faith, but I also suggest that perhaps
it should have involved more or differ-
ent people.
I will not object.
The PRESIDING OFFICER. Is
there objection?
The Senator from New York?
Is there objection?
Mr. CHAFEE. Mr. President, reserv-
ing the right to object, I want to com-
mend the senior Senator from Califor-
nia for what he is doing. I think it
helps us move along here. and I com-
mend him for that.
There has been some confusion. I
think it is an excellent step he has
taken. I want to express my apprecia-
tion to him.
Mr. CRANSTON. I thank the Sena-
tor very much.
The PRESIDING OFFICER. The
Senator from New Jersey.
Mr. BRADLEY. Mr. President, the
amendment before us now is the
Helms amendment, It is very clear. It
would shackle?
The PRESIDING OFFICER. If the
Senator will suspend, is there objec-
tion to the unanimous consent request
to withdraw the amendment?
Mr. BYRD. Mr. President, reserving
the right to object, I commend the dis-
tinguished majority whip for the fair-
ness which he has demonstrated.
Let me say again that nobody,
nobody at any time in connection with
this agreement, said anything or acted
in anything but good faith, and
nobody since then has done such. The
Senator from California has not acted
In bad faith. The Senator from Ver-
mont has not acted in bad faith. I
have explained that already. It was
just an unfortunate circumstance that
developed that could make it a little
difficult for us in the future.
I am glad that Senator CRANSTON
has shown the fairness and rectitude
that he demonstrated here today, and
that is characteristic of him.
I thank him.
Mr. CRANSTON. I thank the major-
ity leader.
Mr. EVANS. Mr. President, reserving
the right to object.
The PRESIDING OFFICER. The
Senator from Washington.
Mr. EVANS. Mr. President, I think it
should be said that this Senator, a
member of the Foreign Relations
Committee, had no knowledge whatso-
ever of this arrangement put together.
I know that there is great concern on
the part of the Senate, certainly on
this Senator, that we finish this treaty
and present it to the President in time
for the summit, but that is not as im-
portant as doing it right.
We have been treated to about 7 or 8
days of I guess what some could call
debate but for the first three-quarters
of that there was no debate. There
was no amendment being offered.
There was no identification of what
was coming. It was just pure delay,
just pure delay.
We finally got the majority leader to
the point where he suggested and filed
a motion for cloture and then appar-
ently this arrangement was made.
Once the motion for cloture was filed,
all we had to do was wait until it ma-
tured.
This amendment in either the first
or second degree would not have been
in order, and this Senator certainly
would have objected to it.
I hope that we are where we are. I
shall not object to the unanimous con-
sent of the Senator from California,
but we have gotten ourselves into a po-
sition we need not have gotten our-
selves into.
May 26', 1988
I think there are a multitude of
things in this amendment which are
dangerous, and I hope that we will
promptly debate it and then vote it
down.
The PRESIDING OFFICER. Is
there objection to the request?
Without objection, it is so ordered.
The amendment was withdrawn.
The PRESIDING OFFICER. The
Senator from New Jersey.
Mr. BRADLEY. Mr. President, the
amendment before us now is the
Helms amendment. We have discussed
this amendment in great length. The
amendment would clearly shackle the
President of the United States in his
meetings in the Soviet Union with
Mikhail Gorbachev. It would require
any President to submit to Congress
the positions he intends to propose to
the Soviet Union prior to proposing it.
That means President Reagan could
not even discuss the START negotia-
tions.
We have had over PA hours debate
on this. I think, frankly, Mr. Presi-
dent, it has gone far enough. I move to
table the amendment and ask for the
yeas and nays.
The PRESIDING OFFICER. Is
there a sufficient second?
Mr. COHEN. Mr. President, would
the Senator withhold?
Mr. CHAFEE. I wonder if he would
withhold.
The PRESIDING OFFICER. There
Is not a sufficient second.
Is the Senator insisting on the
motion?
Mr. BRADLEY. I am insisting on
the motion.
The PRESIDING OFFICER. Is
there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The
question is on agreeing to the motion
of the Senator from New Jersey to lay
on the table the amendment of the
Senator from North Carolina.
The clerk will call the roll.
Mr. HELMS. Mr. President, there
has not been a response. May I ask
unanimous consent for I minute? I
have not been allowed even to discuss
may own amendment.
The PRESIDING OFFICER. Is
there objection?
Mr. BRADLEY. I object.
The PRESIDING OFFICER. Objec-
tion is heard.
Mr. BRADLEY. Mr. President, re-
serving the right to object, the request
is what?
The PRESIDING OFFICER. The
request, as the Chair heard it, was 1
minute for the Senator from North
Carolina.
Mr. BRADLEY. I do not object.
Mr. HELMS. I did not understand
the Senator. That is quite all right.
Mr. BRADLEY. I do not object.
The PRESIDING OFFICER. With-
out objection, the clerk will call the
roll.
The bill clerk called the roll.
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE , S 6793
Mr. CRANSTON. I announce that
the Senator from Mississippi [Mr.
STENNIS] is necessarily absent.
I also announce that the Senator
from Delaware [Mr. BIDEN] is absent
because of illness.
The PRESIDING OFFICER. Are
there any other Senators in the Cham-
ber who desire to vote?
The result was announced?yeas 38,
nays 60, as follows:
[lloMall Vote No. 159 Ex.]
Adams
Bingaman
Bradley
Bumpers
Burdick
Conrad
Cranston
Dodd
Exon
Ford
Fowler
Glenn
Gore
Armstrong
Baucus
Bentsen
Bond
Boren
Boschwitz
Breaux
Byrd
Chafee
Chiles
Cochran
Cohen
D'Amato
Danforth
Daschle
DeConcini
Dixon
Dole
Domenic!
Durenberger
YEAS-38
Graham
Harkin
Hollings
Inouye
Johnston
Kennedy
Kerry
Lautenberg
Leahy
Levhi
Matsunaga
Metzenbaum
Mikulski
? NAYS-60
Evans
Garn
Gramm
Grassley
Hatch
Hatfield
Hecht
Heflin
Heinz
Helms
Humphrey
Karnes
Kassebaum
Kasten
Lugar
McCain
McClure
McConnell
Melcher
Murkowski
Mitchell
Moynihan
Proxmire
Pryor
Reid
Riegle
Rockefeller
Sanford
Sarbanes
Sasser
Simon
Wirth
Nickles
Nunn
Packwood
Pell
Pressler
Quayle
Roth
Rudman
Shelby
Simpson
Specter
Stafford
Stevens
Symms
Thurmond
Tribie
Wallop
Warner
Weicker
Wilson
NOT VOTING-2
Biden Stennis
So the motion to lay on the table
amendment No. 2317 was rejected.
The PRESIDING OFFICER. The
Senator from Arkansas.
May we have order in the Chamber?
The Senator from Arkansas has the
floor.
Mr. BUMPERS. Mr. President, I
thank you very much. I- regret very
much that this amendment, the Helms
amendment, has gotten mixed up with
something of a parliamentary problem
and the feelings of the majority leader
that at least if it was not said overtly,
it was his understanding that there
would not be a second-degree amend-
ment and possibly not a 'tabling
motion on the Helms amendment. I
may be wrong, but I get the impres-
sion that the last vote is not a mani-
festation of the feelings of the Senate
on the Helms amendment, but was a
vote to demonstrate concern for, per-
haps, the Senator from North Caroli-
na having, been wronged by a second-
degree admendment being offered or
tabling motion being offered before he
had an opportunity to fully express
himself and fully describe his amend-
ment to the Senate.
Now that the amendment has not
been tabled, the underlying amend-
ment has not been tabled, there
should be adequate time for everybody
to express themselves, especially the
Senator from North Carolina if that is
a problem for him.
I will just be very brief, Mr. Presi-
dent, in my remarks. We have been
here now for 2 weeks on this treaty
and to my knowledge absolutely noth-
ing has happened in that 2-week
period except to debate. Nothing has
been adopted. No changes have been
made in the treaty. And we are exactly
where we started 2 weeks ago with a
treaty that, in my opinion in the final
analysis, 90 Senators will vote for. I
may be wrong. But, so far as the
Helms amendment is concerned, it vio-
lates everything that most of us in the
Senate believe about this treaty.
First of all, the US. Senate does not
have the unilateral right or power to
issue a declaration on behalf of Con-
gress. The Constitution gives this body
the responsibility for advising and con-
senting to treaties, but it does not say
that we can preempt the House of
Representatives on questions such as
what weapons systems we are going to
build, whether we will discontinue
building them after the framework of
a treaty has been announced or
whether or not the House and Senate
will agree to interim restraints, which
the House has already adopted on the
DOD bill.
Mr. President, the Helms amend-
ment really creates mischief. It is a
mischievous amendment. it contra-
dicts the Vienna Convention on Trea-
ties, 1969, later ratified by this body,
which 'says once you sign a treaty, you
will not take unilateral actions to un-
dercut its object and purpose.
Mr. President, you can he= it on
every Law Day across the country, we
are a Nation of laws, not of men. In
order for this country to be a civilized
place for all of us to live in, there must
be order. It is that way in the school-
room. You cannot teach ehildren
unless you have an orderly environ-
ment. You cannot have a society that
is worth living in unless you have
order, and you will never have a world
that is decent and fit to live in until
you have order. Even though interna-
tional law is not always correct, it is
always binding on us. We are entering
into an agreement with the Soviet
Union here that is absolutely crucial
to the future of negotiations to get the
nuclear arms race under control.
What do you think our President is
doing in Finland right now on his way
to Moscow? He is trying to develop an
environment that will allow your chil-
dren and my children to grow to adult-
hood.
There are some people who do not
want a treaty of any kind with the
Soviet Union under any circumstances.
and that is their prerogative. I happen
to be on the other side, but I also be-
lieve in national law and order, and I
believe in international law and order,
too. You ought to take the Senate into
consideration, and from time to time
during the deliberations on this treaty
and on the START Treaty, Members
of this body have gone to Geneva and
sat and watched the negotiations take
place. To suggest, as the Helms
amendment does, that you must give
the Senate advance notine and make
them a negotiating partner is really a
usurpation of the President's preroga-
tive.
Mr. SYMMS. Mr. President, may we
have order?
The PRESIDING OFFIt:E.R. The
Senate is not in order. The Senators
will take their seats. The Senator from
Arkansas.
Mr. BUMPERS. Section (c) of the
Helms amendment says, in effect, the
verification procedures under the INF
Treaty are inadequate. It says, in
effect, do not come back to the U.S.
Senate with another treaty unless the
verification procedures are more strin-
gent. That is what lawyers call a con-
dition preceding. We are telling them
how to negotiate the treaty. Again, a
usurpation of Presidential prerogative.
If it comes back here with inadequate
verification procedures, then vote no
on the treaty.
The Senate has no right injecting
itself into the negotiating business. It
has no business telling the President
what kind of verification procedures
we will accept. It has no business
saying that nothing in any future
treaty will keep ns from going ahead
with any weapons that we happen to
be in the process of building.
Those are decisions that the House
and the Senate together will deter-
mine in their own right. It would be
folly in the extreme for the U.S.
Senate to prejudge that and to try to
take away the President's negotiating
right. This is all pure sophistry, it is
arcane; it not well drafted.
Every single provision in that decla-
ration can be argued either way, and it
is designed for that purpose. It is de-
signed to allow you to argue it either
way.
So I hope we have a healthy debate.
I am not going to move to table. I am
prepared to sit here all night and
debate this issue. I would like to see
the Helms ainendmeat withdrawn or
tabled. The Cranston amendment is
designed to preempt the Helms
amendment. Neither of them are
really needed. So whatever it takes for
this body to exercise its sole= re-
sponsibility in the treaty-making proc-
ess we ought to do.
Mr. President, I yield the floor.
Mr. BYRD addressed the Chair.
The PRESIDING OleleiCER. The
majority leader.
Mr. BYRD. Mr. President, I ask
unanimous consent--
Mr, COIIEN. Will the Senator with-
hold?
Mr. BYRD. Yes.
Mr. COHEN. I would like to make a
few comments.
Mr. BYRD. I was hoping we could
set the amendment aside?and I will
not make the request?set this amend-
ment aside temporarily so that the
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S 6794 CONGRESSIONAL RECORD ? SENATE
Senators may work on it and let Mr.
Wallop proceed with an amendment
and get a time agreement on that
amendment so the Senators will know
what time there will be a vote and
that will give them, hopefully, 1 hour.
I can stack a couple of votes in this
way. I yield the floor.
The PRESIDING OFFICER. The
Senator from Maine.
Mr. COHEN. Mr. President, I just
want to take a few moments to share
some of the concerns- expressed by the
Senator from Arkansas.
The PRESIDING OFFICER. If the
Senator from Maine will suspend. The
Senate is not in order. The Senate will
come to order. The Senator from
Maine.
Mr. COHEN. I thank the Chair. Let
me just take a moment to articulate
what the motivation is or the objective
is by the sponsor of the amendment
and some of us who may, in fact, sup-
port the amendment, if it is redrafted.
I have stood on the floor for several
days now expressing some concern
that we not understand what I believe
will be an overwhelming vote in favor
of the INF Treaty to send a signal to
the administration that we might ne-
gotiate anything that would provide
for substantial reductions without ade-
quate verification measures.
We have all expressed those appre-
hensions. We recall, for example, how
there seemed to be a rush toward an
agreement at Reykjavik which scared
a lot of us, including our allies.
There was some concern expressed
that we not have the President rush-
ing off to Moscow to sign an agree-
ment without taking into account
some of the genuine and legitimate
concerns some of us might have. That
is the framework, at least my frame of
mind, within which I made the state-
ments during the past several days.
With respect to the amendment that
has been offered, I find some problems
with it. I find some difficulties with
subsection (c), as did the Senator from
Arkansas.
I do not think it is the intent of the
Senator from North Carolina to insist
that the President of the United
States tell us in advance everything he
intends to do, even significant propos-
als he intends to make to Mr. Gorba-
chev during the negotiations.
I believe, for example, that that
should be modified to say: "apprised of
all significant proposals made to the
Soviet Union." I also believe that sec-
tion really ought to be crafted in a
way that keeps in place the arms con-
trol observer group. That has worked
well on INF. It should work well on
START.
I think if that kind of a change is
made, and others such as striking the
word "plenary," that would deal with
the issues raised by the Senator from
Arkansas. I would also note that the
Senator from North Carolina raised
one of the very same issues as the Sen-
ator from Arkansas when Secretary
Shultz testified before the Foreign Re-
lations Committee. The Soviets were
accused of violating the provisions of
the INF Treaty, and Secretary Shultz
said they cannot because it has not
been ratified.
The Senator from North Carolina
correctly pointed out saying some-
thing to the effect: "Don't be too sure,
Mr. Secretary, because there are inter-
national laws which prevent that from
taking place, which obligate both
countries from taking actions which
would negate or nullify the very object
and purpose of the treaty itself."
I think those changes can be made
in the amendment and this resolution
can in fact express the declaration on
the part of a number of us who are
concerned that we just not rush into
an agreement without adequate con-
cerns being devoted to the questions
about verification and other matters.
So I would hope, Mr. President, that
the amendment may be laid aside,
that we can work out some of the
changes suggested by Senator BRADLEY
and myself, and that we could bring
this back at a later time and deal with
it at that time in a positive fashion.
Mr. CHAFEE addressed the Chair.
The PRESIDING OFFICER. The
Senator from Rhode Island.
Mr. CHAFER Mr. President, earlier
this evening I spoke against the Helms
amendment and in support of the
amendment of the senior Senator
from California which was later with-
drawn. Then I voted against tabling
because I felt the Senator from North
Carolina did not have a fair shot to ex-
plain his amendment. I think it can be
cleared up, or should be straightened
out. Some of the suggestions that have
come forward are good ones, and I do
hope during the period it is laid aside
It can be cleaned up and strengthened,
some of the ambiguities removed and
some of the language I found at fault,
particularly in section (c), can be
straightened out. So that was the
reason I voted against the tabling
motion.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER (Mr.
SHELBY). The majority leader.
Mr. BYRD. I am going to ask that
the amendment be temporarily laid
aside. Did the Senator want to be rec-
ognized?
Mr. BUMPERS. No. Go ahead.
Mr. BYRD. Mr. President, I ask
unanimous consent that the amend-
ment by Mr. HELMS be temporarily
laid aside until disposition of an
amendment by Mr. WALLOP, on which
there be a time limitation of not to
exceed?
Mr. WALLOP. Mr. Leader, I think it
will take less but some on my side
have expressed a desire to speak, and I
would at this moment in time be
happy to settle for 80 minutes equally
divided, with the hope that it would
take less than that. But I want to
assure people on my side who wish to
speak on it to be able to do it.
Mr. DOLE. Will the majority leader
yield?
Mr. BYRD. Yes.
Mr. DOLE. If there is no objection, I
think we could follow that amendment
with the amendment of the Senator
from California, Mr. WnsoN, under a
30-minute time agreement. And that
would protect some who have to be
away during this time period.
Mr. BYRD. These are amendments
that have been enumerated.
Mr. DOLE. Yes.
Mr. BYRD. I ask unanimous consent
that time for debate on the Wallop
amendment be 80 minutes, to be
equally divided and controlled in the
usual form; that that amendment then
be temporarily laid aside and that Mr.
WILSON may call up his amendment,
on which there be a 30-minute time
limitation to be equally divided and
controlled in accordance with the
usual form.
If rollcall votes are ordered, I ask
unanimous consent that those rollcall
votes be stacked to begin not earlier
than 9:30 p.m. and that the second and
third votes, if they are immediate
backup votes, be limited to 10 minutes
each, and that the call for the regular
order be automatic in each instance at
the expiration of the time. Mr. Presi-
dent, provided further and finally that
the vote on cloture which is now set
for 8:30 today be waived until 10:30
this evening.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. I thank all Senators.
AMENDMENT NO 2324
(Purpose: To provide for a United States re-
sponse to possible violations of the INF
Treaty)
Mr. WALLOP addressed the Chair.
The PRESIDING OFFICER. The
Senator from Wyoming.
Mr. WALLOP. Mr. President, I send
an amendment to the desk and ask
that it be stated.
The PRESIDING OFFICER. The
clerk will report.
' The assistant legislative clerk read
as follows:
The Senator from Wyoming (Mr. WALLOP]
for himself, Mr. KARNES, Mr. WARNER, Mr.
GARN, Mr. MCCAIN, Mr. NICKLES, Mr.
WILSON, Mr. GRASSLEY, Mr. THURMOND, Mr.
MURKOWSKI, and Mr. SYMMS proposes an
amendment numbered 2324.
Mr. WALLOP. Mr. President, I ask
unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
At the end to the resolution of ratifica-
tion, add the following:
"The President shall not exchange the in-
struments of ratification unless, using exist-
ing power, he communicates to the Union of
Soviet Socialist Republics, in connection
with the exchange of the instruments of
ratification of the Treaty, the following:
"(1) the declaration that the United
States will consider any violation by the
Soviet Union of its obligations under the
Treaty, including any violation described in
a report to the Congress by the President,
pursuant to section 1002 of the Department
ot,Defense Authorization Act, 1986, or any
May 26, 1988
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CONGRESSIONAL RECORD ? SENATE S 6795
other notification required by paragraph
(2), as grounds for undertaking appropriate
responses or withdrawing from the Treaty,
In accordance with the Treaty's terms and
generally recognized principles of interna-
tional law;
"(2) the reservation that, before the date
of exchange of the instruments of ratifica-
tion of the Treaty, the President shall agree
to submit, every 12 months after the date of
entry into force of the Treaty, to the Senate
a report or an addendum to the report re-
quired by section 1002 of the Department of
Defense Authorization Act, 1986, which?
"(A) contains a detailed net assessment of
the overall trends in the strategic and thea-
ter balance, and the effectiveness of the
Treaty and other arms control treaties in
ensuring a stable nuclear balance that pro-
tects the security of the United States and
its allies;
"(B) certifies whether the Soviet Union is
in compliance with the Treaty;
"(C) if the President does not certify full
compliance, contains a net assessment of
the nature of the non-compliance, the reli-
ability of the evidence and the vulnerability
of the sources of that evidence to counter-
measures, and the risks each detected or
suspected violation poses to the security of
the United States and its allies; and
-(D) upon request of the Select Commit-
tee on Intelligence of the Senate, discusses
the question of compliance raised by any in-
telligence information notified under para-
graph (3);
"(3) the declaration that, the Director of
Central Intelligence should transmit to the
Select Committee on Intelligence of the
Senate any finished analysis of intelligence
information which raises questions about
whether Soviet activities are in compliance
with the Treaty'
"(4) the declaration that, whenever the
President submits to the Senate a report
pursuant to paragraph (2) or a report pursu-
ant to section 1002 of the Department of
Defense Authorization Act, 1986, that de-
scribes a violation by the Soviet Union of
the Treaty, and he decides not to withdraw
the United States from the Treaty, the
President should certify to the Senate, not
later than 90 calendar days after the Senate
receives such a report that either?
"(A) he is undertaking appropriate re-
sponses to any such Soviet violation, which
certification will detail the specific actions
being taken in response to the Soviet viola-
tion; or
"(B) the Soviet Union has returned to
compliance with the Treaty, which certifica-
tion will provide a description of the actions
taken by the Soviet Union to return to com-
pliance;
"(5) the declaration that, the Treaty
should no longer continue to remain in
force with respect to the United States if
the Senate adopts a resolution by majority
vote that disapproves the certification sub-
mitted by the President pursuant to clause
(A) or (B) of paragraph (4), as the case may
be; and
"(6) the declaration that, if the President
announces the intention of the 'United
States to withdraw from the Treaty or to
take appropriate responses to Soviet viola-
tions, he should obligate or expend funds to
protect the interests of the United States
and its allies under such circumstances as
the Congress may specifically make avail-
able to him for those purposes".
Mr. WALLOP. Mr. President, on
behalf of myself and Senators KARNES,
WARNER, GARN, MCCAIN, MCCLVRE,
NICKLES, WILSON, GRASSLEY, TRIM-
MOND, MURKOWSKI, and SYMMS, I offer
this amendment. At this moment, Mr.
President, I yield to the chief cospon-
sor of the amendment, Senator
KARNES, for his opening statement.
The PRESIDING OFFICER. The
Senator from Nebraska.
Mr. KARNES. Thank you, Mr. Presi-
dent.
Mr. President, the amendment just
called up will establish a mechanism
for effectively responding to Soviet
violations of the INF Treaty. First, let
me describe the content of this amend-
ment and then I will discuss the spe-
cifics of it in more general terms later.
This amendment is a category II res-
ervation and will not require renegoti-
ation with the Soviet Union.
First, the amendment declares that
the United States will consider any
violation of the treaty as grounds for
undertaking proportionate responses
or withdrawing from the treaty. This
language is a simple reiteration of ac-
cepted practice under international
law for responding to noncompliance
by a treaty partner. While this lan-
guage is a firm statement of policy, it
does not require this administration or
any future administration to take any
? specific action in response to a Soviet
violation, which is reported pursuant
to an annual reporting requirement es-
tablished by this amendment or pursu-
ant to the existing requirement for re-
porting arms control treaty violations.
The language only establishes that it
is the policy of the United States that
such violations will be grounds for re-
sponding, either with a proportionate
response or by withdrawing from the
treaty.
Second, the amendment sets forth
the reservation that the President
must agree to submit to the Congress
a report every 12 months after the
date of entry into force assessing the
status of the treaty with regard to
Soviet violations. The report may also
be submitted as an addendum to the
arms control compliance report re-
quired by existing law. This report, or
addendum, is to include a net assess-
ment of the overall trends in the stra-
tegic and theater balance, as affected
by military developments and arms
control. Also, the report is to contain a
statement of the risks a detected viola-
tion poses to the security of the
United States and its allies, if a Soviet
violation is found. Finally, the report
must address questions of compliance
that are of concern to the Senate In-
telligence Committee. The final provi-
sion in this reporting requirement per-
tains to another section of this amend-
ment, which I will discuss in a
moment. While the President's report
must address the topic of concern to
the Senate Intelligence Committee, it
is not essential that the Soviet activity
in question be assessed as a violation.
The final determination about wheth-
er any particular activity of the Soviet
Union constitutes a violation of the
treaty still rests entirely with the
President.
As I stated a moment ago, the
Senate Intelligence Committee may
request the President to touch upon a
question of Soviet compliance in the
annual report. The third provision of
this amendment declares that the Di-
rector of the Central Intelligence
Agency should transmit to the Senate
Intelligence Committee any finished
intelligence which raises questions
about Soviet compliance with the INF
treaty in a timely fashion.
The fourth provision of this amend-
ment declares that when the President
determines that a violation to the INF
Treaty has occurred, he should either
certify that he is undertaking propor-
tionate responses to the Soviet viola-
tion or certify that the Soviet Union
has returned to compliance, assuming
of course he decides not to withdraw
the United States from the treaty, as
he is always allowed to do. Such a cer-
tification, whether it be one outlining
appropriate responses or asserting
that the Soviet Union has returned to
compliance, should be submitted not
later than 90 days after the President
reports that a violation has occurred
In the annual report.
The fifth provision of this amend-
ment also consists of a declaration. It
states that after the President certi-
fies that he intends to undertake re-
sponses or certifies that the Soviet
Union has returned to compliance, the
Senate may, but is not required to,
adopt a resolution disapproving his
proposed actions. If such a resolution
is adopted, it is the intent of this
amendment that the treaty should no
longer remain in force with respect to
the United States.
The final provision of this amend-
ment states that if the President an-
nounces that it is the intention of the
United States to withdraw from the
treaty or undertake proportionate re-
sponses to Soviet violations, he may
obligate or expend funds to protect
the interests of the United States as
Congress may make specifically avail-
able to him for those purposes. It is
the intention of this Senator, perhaps
on a future Department of Defense
authorization bill, to offer an amend-
ment that establishes a contingency
fund for responding to Soviet viola-
tions of arms control treaties. Of
course, no such funds are authorized
or appropriated here.
In sum, Mr. President, this amend-
ment Is simply a mechanism or proce-
dure for developing a proportionate
response policy. Its purpose is to
ensure that the United States will re-
spond if the Soviet Union fails to
comply with the terms of thic treaty.
It does not, however, attempt to pre-
scribe specific responses to hypotheti-
cal Soviet violations. Thus, the amend-
ment provides the flexibility required
for responding to future Soviet viola-
tions of the DIF Treaty- in a prudent
and reasoned manner. Nevertheless, it
states that the United States's respond
in some fashion when a Soviet viola-
tion is found and not just stand idly
by.
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S 6796 CONGRESSIONAL RECORD ? SENATE May 26, .1888
I would like now to turn to some of
the implications of this proposal.
Since it is likely that some of my col-
leagues will have specific concerns
about the amendment, in anticipation
of those concerns I am going to discuss
what this amendment does not re-
quire.
First, as I stated at the outset, this
reservation does not require renegoti-
ation of the treaty. In fact, no party
external to the Government of the
United States is affected by this lan-
guage in any way, other than to assert
the established rights of the United
States under international law. The
Soviet Union should have no objec-
tions to this language, and in fact I
would argue that Soviet attempts to
alter a proposal of this sort would con-
stitute a violation of the sovereign
rights of the United States.
Second, there is nothing in this lan-
guage that will require the United
States to do anything that is at odds
with accepted practice under interna-
tional law. The language has been
drafted so that this administration
and future administrations can plan
and undertake actions in response to
Soviet violations that are consistent
with international law. The purpose of
the language, in fact, is to ensure that
the United States takes advantage of
Its rights under international law.
Third, the scope of this amendment
is generally limited to the INF Treaty
and is prospective in nature. It does
not require the President to certify
that the Soviet Union is in compliance
with all existing arms control treaties
before this treaty may be ratified.
Thus, this amendment should in no
way cause undue delay in the ratifica-
tion of this treaty. While there is lan-
guage in a reporting requirement that
does touch upon other arms control
treaties in the form of a net assess-
ment, the response mechanism is lim-
ited to the INF Treaty.
Fourth, this language does not imply
that there are fatal flaws in the text
of the INF Treaty as some have
argued. Thus, a vote for this amend-
ment should by no means be interpret-
ed as a vote against the treaty. In fact,
this Senator plans to vote in favor of
granting consent to the ratification of
this treaty, assuming objectionable
language is not added to it in the
course of Senate consideration. While
other Senators may believe that the
treaty is flawed in several respects,
these objections are not the concern of
this amendment. In general, what this
amendment says is that this treaty is
fine on paper, but lets make sure that
we pay close attention as to how it is
implemented.
Fifth, this amendment is not an at-
tempt to tie the hands of the execu-
tive branch as it carries out its respon-
sibilities for implementing the treaty.
This language has been drafted to give
the executive branch broad discretion
in addressing future violations of this
treaty. The responsibility for finding
and reporting a violation would rest
exclusively with the executive branch.
Broad discretion for deciding how to
respond is retained by the executive
branch. The role of the Senate under
this language is a relatively narrow
one. Its role is to pass judgment on
whether the President's proposed re-
sponse to a reported violation is strong
enough to protect the interests of the
United States, given the nature of the
Soviet violation. Thus, the executive
branch will retain the responsibility
for detecting violations and may
choose from an unrestricted list of op-
tions for responding to a violation. Fi-
nally, the enforcement mechanism es-
tablished by this amendment comes in
the form of a declaration. Thus, it is a
statement of intent as to how the
United States will respond to a viola-
tion and is not legally binding.
Mr. President, the failure of the
Soviet Union to fully comply with past
arms control agreements poses a seri-
ous threat to the entire arms control
process.
The President's report on Soviet
noncompliance with arms control
agreements, issued on December 2,
1987, states that the Soviet Union is in
violation of the ABM Treaty, the bio-
logical and toxin weapons convention,
and the limited test ban treaty. The
administration also states that the So-
viets may be in violation of the Helsin-
ki Final Act's arms control provisions.
While not all these violations pose an
immediate security threat to the
United States and its allies, they de-
serve the attention of the American
people. We should be prepared to take
all appropriate actions to ensure that
the Soviet Union lives up to its obliga-
tions.
We have a direct interest in defend-
ing the integrity of the arms control
agreements that have been the object
of the administration's negotiations
with the Soviet Union over the last
several years, and this INF Treaty is
no exception. This agreement will
have an important impact on our secu-
rity and the security of our allies for
the foreseeable future. We must not
allow these agreements to become a
tool for the Soviet Union to weaken
the position of the United States. The
amendment before us now is designed
to prevent this treaty from becoming
just such a tool.
I should also point out that public
opinion seems to support establishing
a prudent policy for responding to
Soviet violations. In January of this
year market opinion research under-
took a survey of 1,000 Americans to
get their views on issues related to na-
tional security. This survey resulted in
a report called Americans Talk Securi-
ty. According to the report, 55 percent
of those interviewed said that the So-
viets could not be trusted in the area
of nuclear arms control. Further, 71
percent of those interviewed stated
that if the Soviets do not keep their
part of arms control agreements and
the United States keep its part that it
would put the United States in a dan-
gerous position. A later survey in this
same series states that 54 percent of
Americans believe that the President
should be required to certify that the
Soviet Union is in compliance with all
past arms control agreements before
the INF Treaty should take effect,
even if such a requirement would kill
the treaty. The result of this survey
make it clear to me that the American
people want the United States to re-
spond swiftly and effectively to Soviet
treaty violations.
While I believe we should applaud
the Reagan administration for what it
has achieved in the area of arms con-
trol with this treaty, we should also
make it clear to the American people
that we will protect both the integrity
of the agreement and the security of
the United States. This body should
state unequivocally that it supports a
policy of responding swiftly and effec-
tively to Soviet violations of arms con-
trol agreements. This amendment at-
tempts to establish such a policy.
Mr. President, arms control treaties
can have enormously important impli-
cations for the security of the United
.States. Success in foreign policy is
most often based on vigilance and
arms control is no exception to this
rule. The United States must be vigi-
lant in protecting the security of the
United States in implementing arms
control agreements. President Reagan
has already demonstrated considerable
vigilance in arms control negotiations.
The same vigilance should be demon-
strated after arms control agreements,
such as this INF Treaty, come into
force. It must be remembered that the
contributions of successful arms con-
trol are derived from the actual imple-
mentation of agreements and the
elimination of weapons. The signing of
an agreement is that start, not the
end, of successful arms control. As we
move forward with this treaty, we also
have a responsibility to focus the at-
tention of the American people on en-
suring that the Soviets live up to their
obligations. This amendment will dis-
courage the Soviets from violating this
treaty and ensures that action will be
taken if the Soviets do violate the
treaty. Thus, Mr. President, I urge my
colleagues to support this reservation.
Mr. President, I yield the floor.
Mr. COHEN. Mr. President, will the
Senator yield for a question?
Mr. KARNES. Yes.
Mr. COHEN. I was interested in a
few points in looking through the
amendment, and I have not had a
chance to study this in depth yet, but
particularly I am concerned about
page 3, subparagraph (3), where it says
in the declaration that "the Directoi.
of Central Intelligence should trans-
mit to the Select Committee on Intelli-
gence of the Senate any finished anal-
ysis of intelligence information which
raises questions about whether the
Soviet activities are in compliance." I
would defer to other people's judg-
ment on this. But my understanding is
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that the Director of Central Intelli-
gence is not charged with making
judgments or decisions as to whether
or not this is compliance or noncom-
pliance but, rather, he submits that in-
telligence information to the State De-
partment, ACDA, an interagency
group, to the NSC, or the President.
It seems to me we ought to be very
careful before we start mandating the
Director of Central Intelligence start,
upon requests from the Intelligence
Committee, sending information about
possible violations. We are now put-
ting him in the position of not only
monitoring but making qualitative
judgments about compliance here
which I think would be a mistake.
Mr. WALLOP. Mr. President, if the
Senator from Maine will yield, I will
respond. It does not call for judgment
on the part of the Director of Central
Intelligence, only that he provide
them with any finished analysis of in-
formation which raises questions. This
was carefully constructed with some
members of the staff of the committee
of which the Senator is vice chairman.
It is designed specifically not to put
the DCI into the business of judging
whether the Soviets are in compliance,
but providing analysis which raises
questions about their possible non-
compliment activity.
Mr. COHEN. I thank the Senator
for his comments. I would like to
pursue this a little bit further at a
later times se the Senator from Wyo-
ming has a chance to address his own
remarks to the amendment.
But also in subsection (4), it states
"and he decides not to withdraw the
United States from the Treaty." It
seems to me the implication of that
statement is that the President can
decide to withdraw. As I recall, Sena-
tor Goldwater, of Arizona, went
through some legal contest as to
whether or not a President can unilat-
erally decide to terminate a treaty and
ended up in court on that. The Su-
preme Court did not take the question
largely because it was a political ques-
tion. But it seems to me the implica-
tion of that statement that "he de-
cides not to withdraw" means that he
can decide to withdraw. I think that is
going to entangle us in some kind of a
legal analysis here. I would refer my
colleagues to a document on this ques-
tion which I included in my remarks
yesterday; it appears on page S6570 of
the RECORD for May 25.
Mr. WALLOP. The President of the
United States cam make such a deci-
sion. Whether he can accomplish it or
not may be subject to the reaction of
the Senate as a matter of some consti-
tutional question. But clearly he can
make the decision. Whether he can ac-
complish that or not is not particular-
ly relevant.
Mr. COHEN. The way in which it is
phrased implies the possibility that
"He decided to withdraw."
Mr. WALLOP. He can make that de-
cision. Whether he can get it accom-
plished or not is another story. But he
can certainly make that decision.
Mr. COHEN. The Senator is not im-
plying he can unilaterally withdraw?
Mr. WALLOP. No such thing. He
has the decision. He is providing his
decision as to- what is the proportion-
ate response. If you read the rest of
the amendment, you will see the
Senate gets involved in things like
that.
Mr. COHEN. I thank the Senator
for his comments. I still have some
question about subsection (3). We are
indeed, I _think, creating at least the
appearance that we are politicizing the
Intelligence process by requiring?
Mr. WALLOP. I would suggest if the
Senator is going to oppose the amend-
ment?as his line of questioning sug-
gests?he begin to seek time from the
other side because with all respect we
did just expand the time available in
order to try, to accommodate some on
this side.
Mr. COHEN. I thank the Senator.
Mr. WARNER. Mr. President, I ask
the distinguished Senator from Wyo-
ming for 41/2 minutes.
Mr. WALLOP. Mr. President, I will
yield 5 minutes to the Senator from
Virginia. But let Me just state my per-
sonal appreciation to the Senator from
Virginia, and Mr. BRADLEY and his
staff who have worked with us a long
time. It is noted that Senator BRADLEY
Is not a cosponsor. But it is an amend-
ment which we took considerable
pains owing to a remarkable op/ed
piece which he had in the New York
Times suggesting that it was not re-
sponsible to enter into a treaty with-
out some kind of an idea in mind that
there would be a response to viola-
tions.
I yield the 5 minutes to the Senator.
The PRESIDING OFFICER. The
Senator from Virginia is recognized
for 5 minutes.
Mr. WARNER. Mr. President, I
thank my distinguished colleague
from Wyoming. Indeed he has been
most cooperative. I know how strongly
he feels about this subject because it is
not the first time he has risen in this
Chamber to express his dissatisfaction
with the pattern of Soviet treaty non-
compliance of arms control agree-
ments. Out of my respect for him and
for the content of his amendment, I
rise in support of this amendment on
which I am now a cosponsor.
Over the past months in the Senate,
through primarily committee action
and now through extensive floor
debate and deliberation on the treaty,
we have heard much criticism of the
fact that we are considering a treaty,
the INF Treaty, at the same time the
Soviets are in violation and probable
violation of other arms control agree-
ments.
Indeed, during the course of our de-
liberation of this treaty, we have had
six votes on various compliance
amendments to the treaty, all of
which were voted down by wide mar-
gins. I participated in the votes against
those amendments. I disagreed with
these particular amendments, for I be-
lieve that, on balance, this treaty is in
our interests, irrespectivp of the re-
grettable Soviet noncompliance with
other treaties. But I also believe that
we have an obligation, as we are about
to adopt this treaty, to send a very
clear signal to the Soviet Union that
we will not tolerate further noncom-
pliance, either with this treaty or with
other arms control agreements.
Thus, I believe we need to demon-
strate dissatisfaction with Soviet non-
compliance and our resolve not to
stand for violations of the INF Treaty.
For this reason, I support this amend-
ment. It is, on balance, the most effec-
tive and most constructive amendment
to date on this subject.
Let us be clear that this amendment
does not bind the President. In fact, it
coincides in many ways with the rec-
ommendation of the Senate Armed
Services Committee, section 912 and
913 of its fiscal year 1989 defense au-
thorization bill, which is an amend-
ment to section 1002 of the 1986 De-
partment of Defense authorization
language, and which is referred to in
the Wallop amendment.
The Armed Services Committee I
might add also expresses the senti-
ment in its committee report on the
INF Treaty, as clearly on record as
being dissatisfied with Soviet noncom--
pliance. This amendment, therefore,
gives the Senate a vehicle in which to
express its dissatisfaction with Soviet
Union violations at the same time not
threaten the treaty's ratification. I
commend the distinguished Senator
from Wyoming.
Mr. WALLOP. I thank the Senator
from Virginia. I appreciate the help I
have had from him and his staff as we
have sought to do this.
It has not been my Intention to have
this a kMer amendment, but simply to
recognize that, for all the proud boasts
of verification regimes in this treaty,
there has been no expression of a
desire to enforce the terms of the
treaty. This amendment is merely that
expression.
It does very little binding on the
President of the United States. There
is only one thing binding, and it is the
requirement of a report. It does not
ask him to undertake specific re-
sponses or any such thing. It says we
should indicate our seriousness about
the Soviet Union's commitments as
well as our own under the terms of
this treaty.
It recognizes that our track record
and our experience with the Soviet
Union under these previous agree-
ments has not been satisfactory.
In point of fact, there is new evi-
dence of violations of the ABM
Treaty, as we speak. There have been
violations of the Biological Weapons
Convention, Limited and Threshold
Test Ban Treacles, the SALT II
Treaty. Indeed, one of the principle
violations of the SALT II Treaty, as
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the Senator from Wyoming has ex-
pressed before, is enshrined in the INF
Treaty. So it says that we are serious
about this.
The Senator from Wyoming and the
Senator from Virginia would much
prefer to have the Soviet Union in
compliance before we enter into this.
My view is that in addition to asking
us to give consent to ratify this treaty,
the President of the United States,
absent some expression of compliance,
Is asking us to give our consent to past
Soviet behavior and license to future
Soviet behavior. This says we do not li-
cense them.
The Senator from Wyoming would
have much preferred harsher lan-
guage, but in the interests of trying to
get this along as a category II amend-
ment and to get some expression by
the Senate of the United States in re-
sponse to the people of the United
States, who genuinely believe there
ought to be compliance, that it ought
not be based solely on trust, that there
ought to be some responsive action, I
hope this amendment will be adopted
by the Senate.
Mr. President, at this moment,
before continuing my remarks, I yield
7 minutes to the Senator from Arizo-
na.
Mr. WARNER. Mr. President, will
the Senator yield me 1 minute?
Mr. WALLOP. I yield.
. Mr. WARNER. Mr. President, I am
grateful, as are all Senators, for the
Senator from Wyoming mentioning
the participation of our staff. I would
particularly like to commend my staff
member, Brian Dailey, who joined the
Senate Armed Services Committee
just 4 months ago. He came from the
Naval postgraduate school, where he
was a professor for several years on
subjects relating to national security
affairs. He collaborated with members
of the staff of the Senator from Wyo-
ming and the staff of Senator BRADLEY
as well as others. He has worked tire-
lessly for the Senate Armed Services
Committee during the deliberations on
the treaty, and we owe him a deep
sense of gratitude.
Mr. WALLOP. He and others have
been very helpful.
The Senator frOm Wyoming wishes
to express again that this is not in-
tended to be a killer amendment, but
an expression of the seriousness of the
United States with regard to the
Soviet Union's performance under the
obligations of this treaty.
I yield 7 minutes to the Senator
from Arizona.
Mr. McCAIN: Mr. President, I thank
my friend from Virginia for his sup-
port of this amendment. It lends a
great deal of credibility to it. I appreci-
ate his kind remarks concerning these
efforts, and I join him in complement-
ing the efforts of the Senator from
Wyoming.
There is no Member of this body
who has shown a greater concern or a
greater expertise on the issue of Soviet
violations and noncompliance with
previous treaties than the Senator
from Wyoming. I recognize very well,
as we all do, that the Senator from
Wyoming would like to have seen
much stronger language in this
amendment. But, for the sake of re-
ceiving the widespread support that I
think this amendment enjoys, he has
agreed to tone down many aspects of
this amendment that he would like to
see and have liked to have seen includ-
ed.
At the same time, this amendment
still addresses several vital issues ap-
plying to both the INF Treaty and the
future of arms control,
We need to remember that 'at this
point in our deliberations, the issue is
not one of whether to ratify the INF,
but rather one of how we deal with
the treaty we are about to ratify and
with the future of arms control.
This amendment is not designed to
block the INF Treaty in any way. It is
not designed to block further arms
control. Quite to the contrary; it is de-
signed to ensure a stable and cautious
approach to arms control that can
build a solid consensus around a proc-
ess that will grow far more difficult as
we move toward START and conven-
tional force reductions.
I realize that there are a few people
in the NSC and State Department
that may have forgotten what hap-
penedeto SALT. I suspect these same
people do not really understand how
fragile the consensus behind this
treaty really is, and the risk of nonra-
tification or delay that the INF Treaty
would have encountered if it had been
sent forward by any President other
than President Reagan.
These people will ultimately do far
more to hurt the cause of arms control
than to help it. The present consensus
on arms control can dissolve overnight
if we do not have a more realistic ap-
proach to reporting on compliance and
deterring Soviet violations, if we
cannot build a consensus around an
arms control strategy that looks
beyond "summitry" and day to day ne-
gotiations, and if we cannot tie our
arms control activities to a clear per-
ception of the impact of arins control
on the military balance and on our se-
curity.
It is important to note that no arms
control treaty can ever avoid some am-
biguities in its wording, specify de-
tailed penalties for every violation, or
create a foolproof mechanism for de-
fining the nature and seriousness of
every possible violation. We have tol-
erated many failings and uncertainties
in the INF Treaty, and we will have to
tolerate at least some major uncertain-
ties in any further arms control
treaty.
The only practical alternative to a
perfect treaty is a greater confidence
within this body that we can trust
both the arms control process and the
compliance process. This is particular-
ly true because a treaty like the
START Treaty will affect our very
survival as a nation, while convention-
al arms control will affect the very
survival of our closest allies.
The INF Treaty is the practical limit
of what the West can accept in the
form of arms reductions whose main
effect is political symbolism.
Any future reductions in strategic
nuclear arms, conventional arms, and
NATO's remaining theater nuclear
arms must come to grips with the
three real goals of arms control: Re-
ducing the overall arms race and the
instabilities in the military balance, re-
ducing the risk of war, and reducing
the cost of war if deterrence fails.
Above all, they must provide the West
a firm assurance that a higher level of
deterrence will exist after such reduc-
tions than before the reductions take
'place.
We can deal with these issues with-
out delaying ratification of, or adopt-
ing "killer amendments" to, the INF
Treaty. This is why I am proud to be a
cosponsor of the amendment we are
discussing here today.
While some of this language in this
amendment is already in the Defense
Authorization Act, I believe that we
need to go further, and to provide
strong& wording regarding the en-
forcement of our arms control treaties
and a warning to the U.S.S.R. that it
must negotiate in good faith.
This amendment will accomplish
that purpose in several important
ways. It will establish more stringent
procedures in dealing with arms con-
trol violations, it will ensure that
timely intelligence reporting on any
violation is given to the Congress in a
form that will ensure that the Con-
gress can act, and it will ensure that
future arms control agreements are
part of a strategy that focuses on re-
ducing the risk and cost of war, and
not simply on weapons numbers or im-
mediate political advantage.
The first major step this amendment
makes in the arms control process is to
ensure that the West will publicize all
Soviet violations and react with suita-
ble countermeasures. This amendment
provides a legal mechanism that goes
beyond the current narrow focus on
the technical details of verification
and compliance and which can ensure
that no Soviet violation is disguised or
Ignored because of a desire to preserve
the overall climate of East-West rela-
tions or domestic political conven-
ience.
It puts the U.S.S.R. on notice that it
will face formal and public U.S. reac-
tion to each violation, and we need to
ensure that we use the Congress and
Western public opinion as a deterrent
to any Soviet violations or sudden
buildup in military capability. It ex-
pands the current annual compliance
report on arms control treaties with
the U.S.S.R. to give this report real
teeth.
The second major step this amend-
ment makes in improving our ap-
proach to arms control is to create a
comprehensive arms control strategy
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CONGRESSIONAL RECORD ? SENATE
that will be regularly updated, force
the administration and Congress to
work toward a consensus, and educate
public opinion in the United States
and allied countries.
It requires the President to submit
an annual report to the Congress that
would provide a detailed and compre-
hensive statement of U.S. arms control
strategy on all existing and prospec-
tive arms control treaties and negotia-
tions. It would specify the nature and
sequence of an administration's future
arms control efforts.
This report would describe how the
United States will approach strategic,
conventional, and additional theater
nuclear force reductions. It would pro-
vide a comprehensive net assessment
of the current trends in the military
balance as they affect arms control.
It would include a comprehensive
data base on the forces on both sides
affected by the arms control treaty, it
would specify the methodology used to
analyze them in full detail, it would
provide the results of both static and
dynamic methods of analysis, and it
would examine all major scenarios and
contingencies ranging from political
confrontation to full scale war.
The report would assess the military
impact of arms control proposals and
would explain the level and impact of
U.S. arms control proposals on the risk
and cost of war in typical contingen-
cies or scenarios.
It would show the impact of pro-
posed subceilings, asymmetries, and
other driving factors affecting a treaty
or arms control proposal on the mili-
tary balance, and show how these act
to increase deterrence and to reduce
the risk and cost of war.
It would describe the strategy the
United States will use to verify and en-
force proposed arms control treaties.
It would describe how the United
States will consult with its allies and
tailor its force improvement strategy
to ensure it can preserve national secu-
rity with and without arms control.
We need to take these two steps to
ensure that the present treaty will be
complied with and to ensure we fully
understand the degree to which it does
and does not ensure a secure level of
deterrence and reduce the risk of war.
More importantly however, we need
to lay the groundwork for the kind of
arms control process that is vital in
the future. The fact we need to face,
as we go beyond the INF Treaty, is
that the West's competition with the
U.S.S.R. in arms control will be a long
and difficult process, and that the
most serious risk it will face is the
U.S.S.R.'s ability to exploit political di-
visions within the United States and
other Western nations.
Some divisions are inevitable. There
will always be differences between lib-
erals and conservatives, and among
the nations of the West, as to the best
way of dealing with verification and
enforcement and with arms control
strategy.
The challenge we face is to find
ways to limit those differences and to
use them constructively, rather than
allow the Soviet Union to exploit
them. To do this, we have to work
toward a consensus on key issues and
we must do so in an open and demo-
cratic way.
If we do not establish a clear arms
control strategy and trust in our com-
pliance procedures, we are almost cer-
tain to see the left and right polarize.
We are likely to see domestic politics
force unilateral outs in modernization,
manpower, and forces in anticipation
of arms reductions.
We also are likely to see the U.S.S.R.
split the West by exploiting its lack of
cohesion and national differences, and
we may well destroy any serious inter-
est in arms control by creating so
many opportunities for political op-
portunism that the U.S.S.R. cannot
resist exploiting them.
This amendment will accomplish
that purpose. It will ensure that the
Congress can act in concert with the
executive branch, it will help build a
bipartisan approach to arms control, it
will help create a consensus within'the
United States and between the United
States and its allies, it will help deter
any treaty violations, and it will help
build a consensus in the West.
Mr. President, I urge the adoption of
this amendment.
The PRESIDING OFFICE& The
Senator from Wyoming.
Mr. WALLOP. The Senator from
Iowa wishes me to yield 4 minutes.
The PRESIDING OFFICER. The
Senator from Iowa is recognized for 4
minutes.
Mr. GRASSLEY. Mr. President, I
rise in support of the reservation be-
cause it addresses what I, and many of
my colleagues feel, is one of the major
flaws of this treaty: the lack of a
viable compliance policy.
This reservation is an attempt to
rectify this omission.
All of the verification procedures, re-
gardless of how technically sophisti-
cated or involved, are useless if there
is not a will to take positive action
when faced with the reality of evasion
or outright violation on the part of
the Soviets.
We all know the record of Soviet ad-
herence with international security
agreements. It has been one of select-
ed compliance, evasion and violations.
We have repeatedly heard the litany
of Soviet arms control violations listed
by distinguished Senator after Senator
in remarks made before this body
during this INF debate.
Senators have pronounced that they
are aware that the Soviets continually
cheat and cannot be trusted to comply
fully with arms control pacts.
In a series of statements before this
body, this past week, I have examined
the history of noncompliance with
arms control agreements by totalitar-
ian regimes in the pre-World War II
era. When these governments saw an
opportunity to gain military or politi-
S 6799
cal advantage, they violated or ignored
the treaty with impunity.
The Verasilles Treaty, the 1922
Washington Naval Agreement, and the
Anglo-German Naval Pact of 1935
were all treaties that lacked a positive
compliance policy and/or the democ-
racies involved lacked the will on the
part of the democracies to invoke one.
And the refusal to act on the part of
the democracies served only to em-
bolden the totalitarian regimes to fur-
ther violations. History reminds us of
the disastrous results from this failure
to act.
I also listed in previous remarks the
dismal record of Soviet noncompliance
with arms control pacts.
The results are obvious to anyone
who looks closely at the issue.
In dealing with totalitarian regimes,
we can, and should, expect them to
evade or violate an arms control
treaty.
Yet, given this reality, Mr. Presi-
dent, there is no positive compliance
policy" in this treaty. There is nothing
there that says to the Soviets, if you
commit certain transgressions, we will
repond with in appropriate way". To
make this treaty work, the Soviets
have to know that the "cost of cheat-
ing" will exceed any benefit to be
gained by such action.
In the absence of such a compliance
mechanism in the treaty, this reserva-
tion is an attempt to provide one.
It sets the framework for the Presi-
dent to respond with proportional
action to Soviet violations and for the
Senate to be given the opportunity to
approve or disapprove of the Presi-
dent's actions by resolution.
This reservation will not affect the
treaty other than to put the Soviets
on notice that noncompliance will not
be tolerated.
It will not require renegotiation of
the treaty with the Soviets. It is
meant to demonstrate that the United
States will not ignore evasions and has
the will and the tools to act.
We all saw how quickly the verifica-
tion issues were resolved when there
was a "quid pro quo" threat that we
could hold over the Soviet Union.
In this case, the threat was holding
up debate on this treaty until the veri-
fication issues were resolved.
This reServation will help put some
teeth into this treaty, to show the So-
viets that there will be an effective
compliance policy conducted by the
President and supported by the Con-
gress.
Mr. 'President, we have seen the re-
sults of the past, and treaties that did
not have a viable compliance policy.
Such an omission or the lack of a
will to act invariably produced viola-
tion after violation.
This reservation is an effort to cor-
rect this flaw in this treaty by setting
up a policy that presents the President
and Congress as a united front against
Soviet noncompliance.
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S 6800 CONGRESSIONAL RECORD ? SENATE May 26, 1988
I urge adoption of this reservation,
Mr. President; We should not accept
this treaty without a viable compli-
ance policy and of course we must also
have the will to enforce it. This reser-
vation will have a twofold benefit.
It will show our resolve to make the
Soviets comply with the INF Treaty,
and put them on notice that in negoti-
ating a workable START Treaty we
will demand a positive compliance
policy.
The PRESIDING OFFICkili. The
Senator from Wyoming.
Mr. WALLOP. Mr. President, I re-
serve the remainder of my time.
The PRESIDING OFFICER. Who
yields time?
The Senator from Nebraska.
Mr. EXON. I yield myself 10 min-
utes of the 40 minutes we have on our
side.
The PRESIDING OFFICER. The
Senator from Nebraska.
Mr. EXON. Mr. President, I am most
delighted that the conference on the
floor of the Senate has broken up be-
cause as important as that discussion
was on the floor of the Senate, we
have before us now a worse amend-
ment, in my view, than the amend-
ment that has caused a great deal of
time and furor in the Senate over a
parliamentary procedure.
I want to start out by saying that I
find myself in an unusual position
again. Here I am carrying the load for
the administration when that should
befall some of the other Members of
this body.
The chairman of the committee will
be back very shortly and will undoubt-
edly have some things to say about
this. I just want to lay some of the
groundwork before he makes those
comments.
I suspect that the authors of this
amendent do not fully know and un-
derstand what they are about to do.
I agree with the general thrust of
what they are trying to do with the
amendment, and many of my friends
and colleagues, including my colleague
from Nebraska, are in support of this
amendment. I am going to try to con-
vince them that at best this amend-
ment should be withdrawn because at
worst it would be added as part of the
treaty.
Having said that, let me state that
this is not a killer amendment, and let
me make that clear. This amendment
could go on the treaty. It would not
necessarily have to be renegotiated or
approved by the Soviet Union. It
would send some warning to them in
some certain areas that might get
their attention, but I suspect it would
not.
Mr. WALLOP. Mr. President, will
the Senator yield for an observation?
Mr. EXON. Mr. President, I shall
not yield and I will not yield. I will
retain the right to the floor.
I would remind those on his side
that I have very carefully and patient-
ly listening as they used up their time,
and I intend to do likewise on this
side.
The PRESIDING OFFICER. The
Senator from Nebraska.
Mr. EXON. Mr. President I was
trying to say that this is a good cover
because we are all very much con-
cerned about the treaty compliance
record of the Soviet Union in the past.
The main difference, I guess, between
myself and my colleagues on that side
of the aisle that are presenting this is
I just have a little bit more faith in
President Reagan or President Bush
or President Dukakis than they evi-
dently do. I think they are all great
Americans. And I do not think that we
need this kind of language in a treaty
that is a fight that is being carried on
over what the Soviets do or do not do
between the United States Senate and
the President of the United States.
And the Soviets, in this case, are
pretty much bystanders.
What this is addressing, Mr. Presi-
dent, is how and when and under what
circumstances should the United
States dictate before a treaty is put
into effect what the President is going
to tell the Soviet Union in this regard
as he exchanges the final document
with them.
There are many reasons that this
should not be put forward. Even
before I knew that this measure was
opposed by the administration, before
I knew that this amendment was op-
posed by this administration's Secre-
tary of Defense and before I knew
that this amendment was opposed by
the Chairman of the Joint Chiefs, I
was opposed to it for a very simple and
fundamental reason.
I would cite that the amendment
now before us, in paragraph (5), says:
The declaration that, the treaty should no
longer continue to remain in force with re-
spect to the United States if the Senate
adopts a resolution by majority vote.
Now let me recite that again, Mr.
President.
If the Senate adopts a resolution by
a majority vote, that disapproves the
certification submitted by the Presi-
dent, and so forth. So what we have
here, Mr. President, probably unbe-
knownst or not fully understood by
the authors of this amendment is that
we are going to require 66 votes to
pass a treaty by the U.S. Senate but,
In this amendment, a majority vote
could take us out of the treaty.
Now, I suspect that the framers of
the amendment did not know, did not
realize, or did not think that through.
I would simply say to them that the
amendment is faulted for many rea-
sons, but for that reason alone it
should not be part of this treaty. At an
appropriate time, before we table or
take other action that I think we feel
we must take on this, we might give a
proper chance for those who offered
this amendment to withdraw it and
forget about it on this treaty and come
up maybe in the future with some-
thing that we could all get behind
with regard to our instructions and
feelings that could be expressed by a
sense-of-the-Senate resolution of some
type to the President of the United
States with regard to what we feel he
should or should not be doing.
I do think, though, that when we
have disputes in a democracy between
the President of the United States and
the confirming body on treaties, the
Senate, that we should keep that in-
family fight between ourselves and not
Involve the Soviet Union because,
from their past experience, I do not
think they would be particularly help-
ful in settling the differences between
the U.S. Senate and the President of
the United States, whoever that is.
Mr. President, let me go through
some of the statements that came up
during the hearings on this treaty. I
cite from the record a statement from
Secretary Carlucci, February 1 of this
year. The question of Secretary Car-
lucci:
Do you think the Senate should condition
its approval of a treaty on some kind of
guaranteed response? What would be the
risks of such conditions?
Answer:
We do not believe that such a condition is
necessary or useful. We would hope that
Congress would express its willingness
during the INF Treaty debate to work close-
ly with this and future administrations in
reaching agreement on responses which
would be appropriate should Soviet viola-
tions of the INF Treaty occur.
We would wish to determine our response
on a case-by-case basis as actual problems
are unlikely to fit hypothetical scenarios de-
termined in advance. Consequently, we re-
quire the flexibility to deal with compliance
Issues as they might arise, and need the co-
operation of Congress in implementing the
appropriate response.
Mr. President, I wish to cite further
from the record. I have just read from
the Secretary of Defense, who I think
most would consider an expert in this
area and one who is not soft in any
way, shape, or form on the compliance
that we expect the Soviets to live up
to.
In this case it is from the Chairman
of the Joint Chiefs, February 4, 1988.
In response to questions posed by Sen-
ator FELL along the same lines of the
questions that I just read that was ad-
dressed to Secretary Carlucci, here is
what the Chairman of the Joint
Chiefs said in this regard:
We would wish to determine our response
on a case-by-case basis as "real world" prob-
lems are unlikely to fit hypothetical scenar-
ios. Consequently, we require the flexibility
to deal With compliance issues as they might
arise.
The PRESIDING OFFICER. The
Senator from Nebraska has used his
10 minutes.
Mr. EXON. I yield myself whatever
additional time I might need. I would
ask the Chair to advise me if I go
beyond another 10 minutes.
Continuing the quote from the
Chairman of the Joint Chiefs:
Should a Soviet violation be detected, the
appropriate response would depend on a
timely assessment of the effect the specific
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May 26, 1988 , CONGRESSIONAL RECORD ? SENATE S 6801
violation would have on the military bal-
ance. Predetermined response criteria would
narrow the assessment and limit both its
value and impact. An appropriate response
to Treaty violations should be determined
on a case-by-ease basis and predicated on a
comprehensive assessment of a host of com-
plex security considerations.
Mr. President, I would like to contin-
ue with a whole series of thoughts in
opposition to this amendment that
have been provided to us by the ad-
ministration, who, after all, are the
ones who are over there or will be over
there in the next few days exchanging
these final documents, we hope, with
regard to the INF Treaty. So these are
points that the administration have
brought up, in addition to the points
in opposition that I have already
raised.
The reservation proposed by Senator
Wallop on treaty compliance reflects
the concerns not only of the Senate,
but also of the Administration over
the Soviet pattern of non-compliance
with earlier agreements.
We are united on the need to be vigi-
lant in monitoring Soviet compliance
with the INF Treaty's provisions and
to continue to press for resolution of
Soviet non-compliance with previous
arms control agreements.
With respect to the proposal in the
Wallop reservation that the President
submit an annual report on Soviet
compliance with the INF Treaty, it
should be recalled that the President
is already required to submit reports
each year on Soviet compliance and
non-compliance with all arms control
agreements.
These annual reports are lengthy,
detailed documents which have had a
record of candor and thoroughness in
discussing Soviet violations or possible
violations of arms control agreements.
In the Administration's view, these
annual reports are more than suffi-
i cient for conveying to the Senate the
kinds of information about Soviet per-
formance envisaged in the Wallop
Amendment.
Another case where the amendment
seems redundant.
With respect to the proposal in the
Wallop resolution that stipulates pro-
cedures for responding to Soviet viola-
tions, this is neither necessary nor de-
sirable.
These are the words of the adminis-
tration not mine.
Article XV, par 2 of the Treaty
gives the 'U.S. the right to withdraw
from the Treaty "if it decides that ex-
traordinary events related to the ? ?
Treaty have jeopardized its supreme
interests."
Additionally, international law per-
mits the U.S. to withdraw from the
Treaty immediately in the event of a
material breach of the provisions of
the Treaty.
_ The Administration clearly contem-
plates close consultation with the
Senate in case the Soviets fail to
comply with the INF agreement. _As
Secretary Shultz noted in his testimo-
ny both on January 25 and March 14,
"The role of the -Congress in this will
remain essential * " If the Soviets
cheat on this Treaty, the President
must be about to count on Congress to
help him take the measures necessary
to preserve our security and that of
our Allies."
Mr. President, just as an added
caveat on my part here, I think that is
what I was referring to earlier. There
has got to be some trust. I do not trust
the Soviet Union and that is why I am
demanding verification; that is why I
am disappointed that we do not have
more flexibility to the on-site inspec-
tion that we already have. That is why
I have been working very diligently,
certainly as the President in the Chair
now recognizes, in the Strategic Sub-
committee, to assist our Intelligence
Committee in providing every possible
advantage that we can or any new in-
novation to provide for the surveil-
lance that we obviously need with
-regard to the INF Treaty.
A further caveat, I would say, is that ?
I have grave concerns with regard to
proceeding with -the START Treaty at
this time. I think there is no possibili-
ty of that taking place, nor should it,
In my view. But I do think that the
present President of the United States
has laid the groundwork, laid the
foundation for some understandings
with the Soviets in the future with
regard to some kind of a START
agreement. But I, for one, am not in
favor of proceeding in that area until
we have more surveillance techniques
than we currently have and certainly
not until we have at least some indica-
tion from the Soviet Union that they
are going to discuss with us their supe-
riority in conventional warfare at least
on the NATO front.
Now, back to the administration
points. This is the next administration
point.
But we do not want to establish hard and
fast rules on the precise manner in which
the President must respond to any Compli-
ance charge. We need to preserve flexibility
in this regard and in the manner in-which
the Executive Branch can respond to both
the Soviets and the Senate concerning com-
pliance points.
Moreover, this Treaty is not based on
trust, but on the most stringent verification
provisions in history. While the INF Treaty
does not guarantee Soviet compliance?no
treaty can?it builds on lessons of the past
and its provisions increase the cost of trying
to cheat and the likelihood that violations
will be detected through using a combina-
tion of enhanced national technical means,
cooperative measures, and on-site inspec-
tions.
The next point by the administra-
tion:
In addition the Treaty contains clear in-
centives for Soviet compliance with the INF
Treaty:
First, the Treaty provisions increase the
probabilities of detecting cheating, since the
existence of any Treaty-limited item after
three years constitutes a clear violation.
This means cheating entails a higher risk of
detection in this Treaty than in previous
ones under which we have detected Soviet
violations.
Second, the U.S. has demonstrated
through termination of its political commit-
ment to adhere to the provisions of SALT II
that the U.S. will not abide unilaterally by
agreements whose security benefits are ne-
gated by Soviet violations.
And, of course, Mr. President, the
caveat here on my part, I am sure
what they are talking about there is
that since the Reagan administration
knew and recognized the fact that
there were violations by the Soviets,
they in turn went beyond tht limits of
SALT II.
There was some concern and gnash-
ing of teeth about that at the time.
But at least the Soviets, I do not be-
lieve for one moment, think we are
asleep at the switch with regard to
their Violations or thoughts of violat-
ing. We will be watching them very,
very carefully.
The Wallop amendment or anything
like it is not going to either enhance
our posture or position in that area.
The next point by the administra-
tion:
The Administration is pressing and should
continue to press the Soviets to end their
non-compliance with arms control agree-
nients.
But this should not cause us to surrender
the benefits of the INF Treaty or to lose the
opportunity to put its landmark verification
provisions into practice, in part to deter-
mine whether these provisions will prove
more effective in bringing about strict
Soviet compliance.
The PRESIDNG OFFICER. The
Senator from Nebraska has used an-
other 10 Minutes.
Mr. EXON. As I say, at the proper
time if this amendment is not with-
drawn we will move to table on this
side and I reserve the balance of my
time.
The PRESIDING OFFICER. Who
yields time? If no one yields time, time
will be charged against both sides.
The Senator from Indiana.
Mr. LUGAR. Mr. President, will the
distinguished Senator from Nebraska
yield 6 minutes?
Mr. EXON. I will be glad to yield 6
minutes to my friend from Indiana. -
Mr. LUGAR. I thank the distin-
guished Senator. I thank the Chair.
Mr. President, I rise with reluctance
because I appreciate the contributions
made by each of the distinguished col-
leagues on this side of the aisle who
have presented this amendment. It is
an important -Consideration for all of
us.
I suspect that each one of us will
start by indicating how important
compliance is; the anxieties we have
with regard to compliance.
I shall not repeat the arguments
made by the Senator from Nebraska
but will underline at least two of
them. First of all, it appears to this
Senator that even though the lan-
guage has been changed from "will" to
"should," in each of the situations
where those words are used?in para-
graph 5 of the declaration that the
treaty should no longer continue to
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S 6802 CONGRESSIONAL RECORD ? SENATE
remain in force with respect to the
United States if the Senate adopts a
resolution by majority vote that disap-
proves the certification submitted by
the President pursuant to clause A or
B of paragraph 4, as the case may be?
that gives this Senator very grave con-
cern.
Mr. President, the President of the
United States; at least as I read this
amendment, must make these certifi-
cations and must indicate the type of
action that he and his administration
are prepared to take when the viola-
tions are indicated. The Senate, by
majority vote, could then suggest and
I stress the word "should" now rather
than will, and that is an improvement,
but it could suggest that the United
States leave the treaty at that very
point.
Mr. President, clearly a very sizeable
constitutional change is contemplated
in that sort of a relationship.
The President of the United States
is vested with authority to Implement'
treaties, to take action with regard to
foreign policy. As the distinguished
Senator from Nebraska has pointed
out, the Senate offers its advice and
consent to the resolution of ratifica-
tion by a two-thirds vote. But on a Par-
ticular day?and I have seen a number,
as have other Senators in which a par-
ticular event of foreign policy comes
to our attention?as a member of the
Senate Foreign Relations Committee,
I can recall many times when Senators
rush to the floor, demand the Senate
take action to indicate our disapproval
of a world leader or a disgraceful situ-
ation.
Frequently, the Foreign Relations
Committee has been bypassed; the
whole committee system is bypassed.
The majority leader and Republican
leader gathered together. Quickly
they hover together everybody else
and before the 6 o'clock newscast is
on, the Senate has decisively, by a vote
of 93 to 0, or perhaps one 'poor soul
has a second thought about it?that is
not a very good way to handle the con-
stitutional relationship with the Presi-
dent, nor treaties, nor for even policy.
This is a serious business. We are in
the process now of trying to add on ad-
ditional things to a treaty which, at
least to this point, I believe, looks like
a pretty good treaty.
In our rush to conclude or in our
desire to accommodate each other, we
are almost likely to take the situation
that comes with a domestic appropria-
tion bill, perhaps, trading off this and
that to accommodate each other, to
try to grease the skids of this situa-
tion. That I think would be a bad mis-
take.
I appreciate that we are interested
in compliance. But I would reiterate
what the Senator from Nebraska has
stated, and that is that the world now,
in particular the Senate, is replete
with reports from the President of the
United States and the administration
with regard to compliance.
They are coming out of our ears.
The problem is that violations are not
always a sure thing. We may think
they are. We may be certain that the
Soviets have cheated. I am simply
here to tell you that most of the viola-
tions that are out there are still under
consideration, under debate.
Most of us believe the presence of
the radar facility is a violation. I be-
lieve it is a violation, and it is not
really clear how the Soviets are going
to deal with that with the great pres-
sure put on them to do 'something.
I also say the President of the
United States takes activity with
regard to that radar installation. It is
not up to us to have a majority vote as
to whether we liked or thought it was
sufficient or not and to take ourselves
out of the ABM Treaty or, in this Par-
ticular case, the INF Treaty if a viola-
tion were perceived and found wanting
in terms of response by the Senate.
. I hope, Mr. President, that we will
not overstep the constitutional bounds
in our anxiety about compliance and
our desire to indicate toughness with
regard to the Soviets. I just say on this
side of the aisle, I applaud the distin-
guished Senator from Nebraska. I be-
lieve the President of the United
States is a strong man. I am. certain
his successor is going to be a strong
man. I happen to believe that Presi-
dents ought to have executive author-
ity. I sort of lost that argument a bit,
in my Judgment, earlier on in the day.
I expressed some misgivings with
regard to the Byrd amendment, al-
though I voted for it.
The PRESIDING OFFICER (Mr.
ROCKEFELLER). The Chair must point
out the time of the Senator has ex-
pired.
Mr. LUGAR. I thank the Chair, and
I yield the floor.
The PRESIDING 010FiCER. Who
yields time?
Mr. PELL addressed the Chair.
The PRESIDING OFFICER, The
Senator from Rhode Island.
Mr. PELL. Mr. President, this
amendment I know is offered in a con-
structive spirit, in a positive spirit, by
its proponents. But on balance, we
have to judge whether it is an amend-
ment that helps our Nation, in its de-
velopment of foreign policy, helps our
President, and helps ourselves.
What this amendment would basical-
ly mean is that while it takes two-
thirds of the Senate to enter into a
treaty, any time half of the Senate got
impatient, it could withdraw from that
same treaty.
It forces the President, in addition,
to resolve the problem or propose a re-
sponse in 90 days. That does not give
the President very much time to solve
a problem.
Basically, I think this is an amend-
ment that would tie our President's
hands in foreign policy to an extent
that would be harmful to our basic in-
terest.
May 26, 1988
I join with my colleague from Indi-
ana in urging that we vote to defeat or
perhaps even to table this amendment.
Mr. President, I still have the floor. I
would like to yield 2 minutes to Sena-
tor LEVIN.
Mr. LEVIN. addressed the Chair.
The PRESIDING OFFICER. The
Senator from Michigan.
Mr. LEVIN. Mr. President, this is
really quite an extraordinary amend-
ment because it represents a signifi-
cant arrogation of power to the Senate
and by the Senate. Under the Consti-
tution, it takes two to make a treaty.
Under this amendment, it takes but
one to withdraw from a treaty.
If there has been a violation of the
treaty, as certified by the President,
no matter how minor he thinks it
might be, and if the Senate is not sat-
isfied with the way the President has
tried to correct the violation, that is a
significant change in the Constitution.
The Constitution does not provide
the Senate and; indeed, may not
permit the President?we do not
know?to unilaterally withdraw from a
treaty. It took two of us to enter into
that treaty. It took our advice and con-
sent. We had to consent to it before a
treaty could be ratified.
Under this amendment, the Senate
Is given the unilateral right by majori-
ty vote to withdraw from a treaty if it
disagrees with the Presidential certifi-
cation in paragraph (4), clause (A) or
(B).
Mr. McCLURE. Will the Senator
yield for a question?
Mr. LEVIN. I will be happy to.
Mr. McCLURE. There have been
two references that the Senate, by ma-
jority vote, could abrogate a treaty.
Is it not more correct to say that the
President is required to give a report
to the Congress which, by majority
vote, the Congress could reject? Is
there anything in the Constitution
today that says that the Senate of the
United States or the House of Repre-
sentatives, the? Congress as a whole,
could not, by majority vote, say we do
not like what is happening?
Mr. LEVIN. As far as I know, it is
unclear in the Constitution as to
whether the Senate?not the Con-
gress?this says the Senate, whether
the Senate unilaterally on its own can
withdraw from a treaty.
The PRESIDING OFFICER. The
Senator from Michigan has used his 2
minutes.
Mr. McCLURE. I wonder if the Sen-
ator will yield the Senator 2 More min-
utes so he can respond further?
Mr. PELL. I yield 2 minutes to the
Senator from Michigan.
Mr. LEVIN. I know of nothing in the
Constitution which gives the Senate
the right on its own by majority vote
to unilaterally withdraw from a treaty.
Mr. McCLURE. Will the Senate
point to any language in this that
gives the Senate by any vote, by any
margin of vote, the right to withdraw
from a treaty? It says on the face of
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
the amendment that, by majority vote,
the Senate could disapprove of the
report that was filed by the President.
Mr. LEVIN. What is the effect of
that?
Mr. McCLURE. It says the Senate
disagrees with the report sent by the
President.
Mr. LEVIN. And the effect of that
be?
Mr. McCLURE. Is that the Senate
does not approve of the report sent by
the President.
Mr. LEVIN. It also says that "the
declaration that the treaty should no
longer continue to remain in force
with respect to the United States if
the Senate adopts a resolution," which
the Senator just referred to.
Mr. McCLURE. No, it does not say
that, I would say to the Senator. It
says that the President can submit a
report about whether or not we should
or should not withdraw from the
treaty, and the Senate has the right to
approve or disapprove of that report
by the President. ?
Mr. LEVIN. I am reading the lan-
guage here at (5). Perhaps I am not
reading the same amendment that has
been offered. It says, "the declaration
that the treaty should no longer con-
tinue to remain in force with respect
to the United States if the Senate
adopts the resolution."
Mr. McCLURE. Will the Senator not
agree, however, that that is the lan-
guage of a report required of the
President?
It does not say that if the Senate
votes to disapprove that report, that
the treaty is automatically abrogated.
This does not say that, does it?
Mr. LEVIN. It seems to say it to me,
but I just read it. I cannot read it
again any more clearly than I did the
first time. If all the Senator is saying
is that nothing happens if the Senate
disagrees, then it seems to me this is
an uttely useless amendment.
Mr. McCLURE. The Senator might
have that--
Mr. LEVIN. The Senate has a right
to adopt a resolution at any time dis-
agreeing.
Mr. McCLURE. That is exactly the
point I was trying to make and nobody
has yet argued that that is unconstitu-
tional.
Mr. LEVIN. The Senate has a right
to express an opinion every time, but
here we are saying that the treaty
should no longer continue to remain in
force.
The PRESIDING OFFICER. The
time of the Senator from Michigan
has once again expired.
The Senator from Wyoming.
Mr. WALLOP. Mr. President, what
Is the time situation?
The PRESIDING OFFICER The
Senator from Wyoming has 7 minutes
and 18 seconds.
Mr. WALLOP. And?
The PRESIDING OFFICER. The
other side has 5 minutes and 36 sec-
onds.
Mr. WALLOP. Mr. President, I yield
myself 6 minutes.
Mr. President, let me say that this
whole debate has been Alice in Won-
derland, but this in particular gets us
there. The treaty itself permits the
President to withdraw from the treaty.
Let's not make any foolish statements
about that. The senior Senator from
Nebraska has made statements which
tell me that he nor the administration
have read the amendment. What they
want to do is not have any amend-
ment. First of all, the Senator from
Nebraska says this is an amendment to
the treaty, and nothing could be fur-
ther from the truth. The treaty has
been set aside. He may not realize that
but it is true.
Second of all, he read something
from the administration and Secretary
of Defense Carlucci that said we ought
to do this on a case-by-case basis.
What in Heaven's name does he think
this treaty provides except the re-
sponse on a case-by-ease basis. I do not
know where has head is but it is not in
the amendment
Third, these reports are redundant
and he said we should not trouble the
administration to prepare the one
report and submit it on both cases.
The Senator from Nebraska was un-
willing to yield to me just for the ob-
servation that this is not an amend-
ment to the treaty, does not go on the
treaty, cannot go on the treaty. That
is all gone, and it will not come back.
We have made a provision for the ad-
ministration to handle the reporting
requirements through an existing
report.
One of the things that this amend-
ment does is put the Senate on notice
that it pays the bill, a rare occasion
for us. If we do not pay the bill, noth-
ing takes place.
He said maybe in a few weeks we
could find something that we could all
get behind. I can tell you what we can
all get behind. That is a piece of mush.
The Senate has had an opportunity
throughout the experience of this
Senator to do something about Soviet
violations and all it does is constrain
the behavior and actions of the United
States, not seek in any way to con-
strain the behavior and actions of the
Soviet Union.
The administration and the Senator
from Nebraska and the Senator from
Indiana all say they do not want to set
a standard for compliance. There is no
standard for compliance in here, to
the great regret of the Senator from
Wyoming. I wish there was, I wish
that we had something that said to
the Soviet Union we are serious about
your undertakings as well as our own.
What this Senate and this debate says
to me is that the only undertakings we
are serious about in this treaty are
those of the United States. We ratify
in addition to this treaty your past be-
havior and your future behavior. We
license it.
The Senator from Indiana says that
violations are not a sure thing. If the
S 6803
violations are not a sure thing, no
action is required. What we have here
is the administration mewling and
whining about a fact that this Senate
would like to have us say we are seri-
ous about the compliance regimes
under this treaty.
There is no more useless word in
arms control than verification absent
an intent to take some action once you
verify a violation. That is the whole
point of this. Modest as it is, it says
the American people would like to be
sure that the Soviet Union lives up to
it. The American people would like to
be sure that the Senate is serious that
if the Soviet Union does not, as it has
not in the past, live up to its obliga-
tions under this treaty, there is some
contemplated review and action possi-
ble to us there. Nothing, unfortunate-
ly, is mandated. It just says take com-
pliance seriously.
The Senator from Nebraska says
that cheating contains in this treaty a
higher risk of detection.' So what? If
after detection we have no action in
mind, what in Heaven's name is the
use of detection? That is really what
this is all about. He said we should
press and continue to press for compli-
ance. What a wonderful thing. Yes, let
us press. With what? Our little finger
or something even less strong? He said
we should not lose our stringent verifi-
cation. Why would this amendment
damage in any way the INF Treaty's
verification regime? On what basis
could anybody say that is would?
There is no recorded or required
action on behalf of the Soviet Union
other than to listen to this thing being
read to them. That is it. So how are we
going to lose our stringent verifica-
tion? And what in Heaven's name is
the use of our stringent verification if
we do not have the simplest idea that
we would like to require compliance
should we through verification deter-
mine them to be in violation of the
treaty?
Mr. President, I reserve the remain-
der of my time.
Mr. LUGAR addressed the Chair.
The PRESIDING OFFICER. The
Senator from Indiana.
Mr. LUGAR. Mr. President, will the
distinguished chairman of the Foreign
Relations Committee yield 3 minutes?
Mr. PELL. I yield 3 minutes to the
Senator from Indiana.
Mr. LUGAR. I thank the Senator.
Mr. President, the distinguished
Senator from Wyoming has mentioned
at least some judgmental views that
somehow or other the Senate would
say through this amendment that we
are serious about violations, about
compliance. The American people
would like to be sure that the Soviets
live up to the treaty and that some
contemplated review is going to occur,
that we are not licensing the Soviet
Union to violate. ,
Mr. President, I do not detect in
President Reagan any intention in his
actions to show any degree of license,
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as he approaches the Soviet Union, to
violate treaties, violate relations with
our country. I have not detected in
President Reagan that the American
people feel he is soft on communism,
soft on violations, soft on arms con-
trol. Quite to the contrary, Mr. Presi-
dent. One reason, in a very practical
sense, we have before us tonight the
INF Treaty and have a very good
chance of seeing its passage is because
a very conservative Republican Presi-
dent decided to negotiate from
strength. That is a very important
factor. The impression given, I fear, by
this amendment is that somehow or
other our President is beguiled or
asleep or simply does not understand
the whole violation process.
Now, I would submit he does. The
administration has been furnishing re-
ports of violations. The administration
has been working through the consult-
ative commission to try to work out
violations. We have spotted them. We
ought to say to the American people
In this debate we are serious about it,
we have been serious about it, one by
one we are following through on them,
and to give any other impression, it
seems to me, would be a gross violation
of the facts.
Now, we might be able to do more,
and to the extent that this debate
spurs the administration on to greater
compliance, that is to the good. But it
is not the time and place to add an
amendment to the INF Treaty or to
the resolution of ratification, more
particularly, that is unnecessary, and
for reasons that I suggested earlier on
I think is a constitutional breach of
some significance.
I thank the Chair.
Mr. EXON addressed the Chair.
The PRESIDING OFFICER. The
Senator from Nebraska.
Mr. EXON. Will the distinguished
chairman-of the committee yield me 2
minutes?
Mr. PELL. Mr. President, I yield 2
minutes to the Senator from Nebras-
ka.
Mr. EXON. Mr. President, I suspect
that time has about run out. We are
ready to vote on this. I had hoped that
my friend and colleague from Wyo-
ming would withdraw the amendment.
I take it he does not intend to do that
by the remarks that he just made.
I would simply say that the Senator
from Nebraska made the case as he
saw it. He made the case for the ad-
ministration. I suspect that I will be
the first Democrat that will be called
down to the White House, ushered
Into- the Oval Office and have my pic-
ture taken with the President of the
United States for the great service
that I have rendered to his administra-
tion and the Republic for standing up
for what I believe in here. I say that
facetiously. I know that is not going to
happen.
Some of the remarks that my friend
from Wyoming made with regard to
what the Senator from Nebraska
thought were not my thoughts. I
thought I clearly indicated those
thoughts that he, many of the
thoughts that he took objection to,
were point papers that were furnished
to us by the administration, which I
tend to support whenever we leave the
shores of the United States and enter
the very complicated world of interna-
tional politics. I think it would not
help the President of the United
States?if we can ever get this treaty
ratified and handed to Mr. Howard
Baker so he can rush over there with
it, because of our negligence and time-
consuming actions, some of which are
not unlike this particular amendment.
I do not think it would help the Presi-
dent of the United States to have to
fumble around with this kind of lan-
guage that is as ridiculous and redun-
dant as this amendment is.
Last but not least, if we would ever
pass an amendment like this, then we
would indeed have a historical
moment. We would be putting the
United States on record as allowing
half of the Members of this body, as
the Senator from Indiana has said so
well, in any given moment and at a
moment's notice, to vote to withdraw
from the treaty with a simple majority
vote.
I am as much concerned as anybody
else about Soviet violations. But this
amendment does not begin to cure
anything. I yield back the balance of
my time.
The PRESIDING OFFICER. The
Senator's time has expired. All time on
the majority side has expired.
Mr. WALLOP. Mr. President, I ask
unanimous consent that a poll be in-
serted in the RECORD.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
Q. 10. And, do you think the 'U.S. Senate
should or should not require:
cl. That President Reagan certify that the
Soviet Union is adhering to all past arms
control agreements before the treaty can
take effect:
ATS March 1988?Should require, 71%;
Should not require, 24; Not sure (volun-
teered), 5.
c2. And, would you still favor requiring
this condition if it meant the risk of killing
the INF treaty?
Among those favoring condition in Q.10c1:
ATS March 1988?Should require, 76%;
Should not require, 20; Not sure (volun-
teered), 4.
Net total from Q.10c1 and Q10c2.
Even If Condition Would Kill INF Treaty:
ATS March 1988?Should require, 54%;
Should not require, 39; Not sure (volun-
teered), 7.
Mr. WALLOP. Mr. President, I do
not know what goes on in here. I do
not know why the opposing side choos-
es to misrepresent what is taking place
in here. There is no majority vote in
the Senate that eliminates the binding
effect of this treaty, and they say it is
simply to cloud the issue. It is in fact
not true. Let me just assure the
Senate of that case as the Senator
from Idaho has just done.
Second, this is not an accusation
that the President is soft on commu-
nism or weak or anything else. It is a
historical reaction of the Senate of the
United States, should we be brave
enough to pass it, that we have viewed ,
past Soviet behavior?and there is
record of noncompliance?and we
want for darned sure this time to be
certain that they comply.
That is not a very bad thing.
I yield the remainder of my time to
the Senator from Nebraska, Senator
KARNES.
Mr. KARNES. Mr. President, I ap-
preciate that, and the words of my dis-
tinguished colleague from Wyoming.
I would just like to make a couple of
very brief observations. I heard the
old saying, "Where's the beef?" I
think in this case this amendment
deals with, "Where's the teeth?"
There have been a number of state-
ments made about the teeth of these
treaties that have been signed by vari-
ous countries with the United States
on arms control. There have been no
teeth.
There was a statement made by my
distinguished colleague from Nebras-
ka, I believe a side from the adminis-
tration, that says this treaty builds on
the lessons of the past. If there is one
lesson of the past that this amend-
ment builds on, it is the fact of what
we have done in the face of violations
by the Soviets of the ABM Treaty, the
Chemical, Biological, and Toxic Weap-
ons Convention, the Nuclear Limited
Test Ban Treaty, and the Helsinki
Final Act, to name a few. That is what
I am asking. Where is the teeth? I be-
lieve this amendment provides those
teeth.
Mr. WALLOP. Mr. President, I ask
for the yeas and nays on the amend-
ment.
The PRESIDING OFFICER. Is
there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
Mr. PELL addressed the Chair.
The PRESIDING OFFICER. The
Senator from Rhode Island.
Mr. PELL. Mr. President; I move
that when the appropriate time comes,
perhaps Senator LUGAR and myself
should move to table the Wallop
amendment. I make that motion now.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is
there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. Under
the previous order the Senator from
California is recognized for the pur-
pose of making an amendment.
AMENDMENT NO. 2325 ?
(Purpose: To provide that the only interpre-
tations of the Treaty which bind the
United States are those which are equally
binding on the Soviet Union under appli-
cable international law)
Mr. WILSON. Mr. President, there is
an amendment at the desk which I
offer on behalf of myself, Senators
NICKLES, QUAYLE, DOLE, LUGAR,
WARNER, and McCAnkr.
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May 26, 1988 CONGRESSIONAL RECORD ? SENATE
The PRESIDING OFFICER. The
clerk will report.
The legislative clerk read as follows:
The Senator from California (Mr.
WILSON), for himself, Mr. NICKLES, Mr.
QUAYLE, Mr. Dom, Mr. LUGAR, Mr. WARNER,
and _Mr. McCAIN, proposes an amendment
numbered 2325.
At the end of the resolution of ratifica-
tion, add the following: -
The Senate's advice and consent to ratifi-,
cation of the Treaty is further subject to
the following:
( ) CoNurrioN.?The United States shall
not be bound to any interpretation of this
Treaty that is not equally binding on the
Soviet Union under applicable international
law.
Mr. WILSON. Mr. President, I did
not ask for a suspension of the read-
ing. It took him a very brief time to
read the entire amendment. It is a
single sentence. It states:
The United States shall not be bound to
or constrained by any interpretation of this
treaty that is not equally binding or con-
straining upon the Soviet Union:
Mr. President, a great Senator, a
great Democrat, "Scoop" Jackson, at
the time of the SALT I agreement, of-
fered an amendment that said essen-
tially the same thing. His concern at
that point had to do with mutuality of
obligation in terms of quantity, in
terms of the number of units that we
were concerned with, but the principle
was the same.
Mr. President, I can think of no
reason, frankly, why this amendment
is not acceptable, and would be happy
to have it accepted. It simply says that
the United States and the Soviet
Union shall operate under mutuality
of obligation with respect to an inter-
pretation of this treaty.
Mr. president, ta this point, I reserve
the balance of my time.
Mr. NICKLES addressed the Chair.
The PRESIDING OFFICER. The
Senator from Oklahoma.
If the Senator will suspend for a
moment, who yields time?
Mr. WILSON. I yield to the Senator
from Oklahoma such time as he may
require.
The PRESIDING OFFICER. The
Senator from Oklahoma.
Mr. NICKLES. Mr. President, I rise
in Support ofthis amendment and as a
cosponsor of it. I appreciate and com-
pliment my good friend and colleague,
Senator WILSON from California.
This amendment is simple, but prob-
ably as important as any amendment
which we have discussed over the last
couple of weeks. It says and states
very frankly and very briefly that the
United States should not be con-
strained by any interpretations of the
treaty that are not equally binding
upon the Soviet Union.
We should not be more binding on
the United States than we are on the
Soviet Union. Very often, despite the
fact that the United States adheres to
treaties very strictly and closely, the
Soviet Union has taken advantage of
us and "driven a truck" through a very
broad or gray area of various treaties.
This amendment says we will not be
held bound by any interpretation in
any way that the Soviet Union is not
also equally bound. It is a very com-
monsense amendment, a very impor-
tant amendment, one that I would
hope would be passed by an over-
whelming majority of the Senate to-
night.
The PRESIDING OFFICER. Who
yields time? Who yields time?
Mr. NUNN. Mr. President, may I ask
who controls the time in opposition?
Mr. PELL. I believe I control that
time. I will yield as much time as the
Senator may desire.
Mr. NUNN. I thank the Senator.
Mr. President, this looks like an
amendment that everyone should im-
mediately go down and-say, "I am in
favor of this." But I think it is impor-
tant for the Senate to understand
what it does. This basically sets up
international law, applicable interna-
tional law, and says by implication
that international law will override do-
mestic law. That has the effect of se-
verely undermining, if not completely
diluting the Byrd amendment, which
was passed by 72 votes a few minutes
ago, maybe a few hours ago.
It also is contrary to the Culvahouse
letter that was sent to Senator LUGAR.
The Culvahouse letter states clearly,
and I quote from that letter:
The President is bound by authorita-
tive interpretations ? ? ? and relied
upon by the Senate.
Quoting from the letter:
? ? ? even if the treaty negotiating record
and subsequent practice indicate an inter-
pretation to the contrary.
This is also contrary to the Cooper
memo which was a Justice Depart-
ment memo which came out about a
year ago which states, and I quote
from that Cooper memo:
Obviously a President could not negotiate
a treaty with other nations on the basis of
one understanding of its import, submit the
treaty to the Senate on the basis of a wholly
different understanding, and then in imple-
menting the treaty rely solely on the under-
standing he had reached with other parties.
Such results would essentially eviscerate
the Senator's constitutional advice and con-
sent role, because it would deprive the
Senate of a fair opportunity to determine
whether or on what conditions the treaty
should become the supreme law of the land.
So I say about the Wilson amend-
ment, for those who voted for the
Byrd amendment, I urge them to vote
against this amendment. '
We do not believe that the Senate of
the United States and the authorita-
tive representations given to the
Senate of the United States should be
-rolled back by international law. What
this basically says is that if you have a
negotiating history or a negotiating
record that is contradicted by the ad-
ministration's own authoritative testi-
mony, the international law principle
would set up a negotiating history.
That may not be what the author
means, but that is the clear import of
this amendment.
S 6805
It basically would mean that the
ratification process we go through in
the Senate, no matter what we are
told, is forbidden by international law
or could be interpreted that way, and
we could go back to the negotiating
history.
So an administration could come up
here and say: "We have agreed to
treaty A. We want you to give consent
to ratification of treaty A." We could
give consent to ratification of treaty A.
They could sign that?let us say the
INF Treaty. They could sign the INF
Treaty and then testify before the
Senate what it meant. Then they
could go to Moscow, with the Senate's
consent, and could exchange the arti-
cles of ratification, and we could have
a treaty. They could come up a year
later and say: "Wait a minute, fellows.
Locked in the State Department's
safe, we forgot to give you part of the
negotiating history. Under the rules of
international law, we now have a
treaty we explained to you as treaty A,
but it is really treaty B, because we
didn't give you that, or at least you
didn't catch it. So what we have here
is that the Soviet Union is not bound,
because of negotiating history, by
treaty A, and they are bound by treaty
B. We are sorry, and we are now ,
bound by treaty B. We will help you
next time, Senate, but right now we're
going to go with another treaty, even
though we testified that this was the
treaty we agreed to."
So anyone who believes that the
Senate of the United States has a role
in this matter should vote against this
amendment.
Mr. NICKLES. Mr. President, will
the Senator yield?
Mr. NUNN. I yield for a question.
Mr. NICKLES. That is the purpose.
I do not know how Much time the Sen-
ator has.
Mr. NUNN. I do not know about the
time.
Mr. PELL. Mr. President, I yield
such time as may be necessary to the
Senator from Georgia.
Mr. NUNN. I thank the Senator.
I yield for a question.
Mr. NICKLES. To my friend and
colleague from Georgia, I say that I
am surprised by his statement and by
his opposition to this amendment.
Is he telling us that by adoption of
the Byrd amendment, we are saying,
automatically, that the United States
is going to be agreeing to more strict
interpretation, more constraints, than
the Soviet Union is going to be agree-
ing to?
This amendment is just trying to
make sure that will not happen. I read
the Byrd amendment; I have read it
several times. With this amendment
we are trying to make sure that we do
not put more restraint on the United
States than we do on the Soviet
Union. That would not be to the ad-
vantage of the United States.
Mr. NUNN. The way to do that is
that the administration tells the truth
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S 6806 CONGRESSIONAL RECORD ? SENATE May 26, 1988
and gives authoritative testimony and
has competent people negotiating.
Then you make sure the authoritative
testimony is also binding on the Soviet
Union. That is what we have tried to
do. Unfortunately, we have had un-
pleasant experiences in recent years
with things like that not being the
case.
Mr. NICKLES. I doubt if the Soviet
Union has to testify before three com-
mittees, hundreds of hours, thousands
of pages, and submit their leaders to
the type of detail we do.
I am glad we do look at treaties to
the extent we do, but I am afraid part
of the result is that we are going to de-
velop a treaty that will be much, more
restraining on the United States than
on the Soviet Union.
It is a very simple amendment. Basi-
cally, it states that we do not want to
have an interpretation that is more
binding on the United States than on
the Soviet Union. It is very clear. I
hope the Senator from Georgia, know-
ing him as I do, would support this
amendment, to make sure that we do
not place more restraint on the United
States than the Soviet Union.
Mr. NUNN. I am in complete accord
with the Senator to make sure that we
are not bound by anything the Soviet
Union is not bound by. That is the rea-
sons why we are careful in our com-
mittees to make sure that the adminis-
tration gets a good, sound treaty, that
we have sound cross-examination
about what the treaty means, and that
if there is any doubt about whether
the Soviet Union is equally bound, we
go through the procedure we go
through here today, of attaching
amendments to the articles of ratifica-
tion.
I agree with the goal this amend-
ment is aimed at, but this amendment
is clearly an effort to basically unwind
the Byrd amendment. That is what it
is.
Mr. NICKLES. If this is to unwind
the Byrd amendment, was the purpose
of the Byrd amendment to impose
more restraint on the United States
than it does on the Soviet Union?
Mr. NUNN. No. That was not the
purpose, and that would not be the
case, except in rare circumstances,
where you had administrations which
were incompetent or devious or some
combination of that.
There is a possibility that you could
have an administration come up and
say: "This is what we believe the
treaty is. It is treaty A."
Then they could come back in 6
months and say, after we have already
consented to ratification: "We're
sorry, it wasn't treaty A. We found
something in our safe that says this
point was incorrectly explained; and
even though the testimony was au-
thoritative, that was not in the negoti-
ating history, and therefore, Senate,
we're sorry, but you consented to
treaty B, even though we told you it
was treaty A." That is how this whole
proposition got started.
We are not going to relegate the
Senate of the United States and the
law of the United States to some prin-
ciple of international law that refers
to a negotiating history that we do not
even have before us when we are going
to examine a treaty. I do not think
that is what the Senate wants. I do
not think that is what the Senate will
get.
I assure the Senator that the people
on his side of the aisle who may be in
favor of this amendment may change
their minds if there is Ga. different
President of the United States, be-
cause I do not think you would want
the President of the United States in
the next go-round, if it happens to be
someone you do not particularly agree
with, to be able to come in and say:
"Look, folks, we sure are sorry about
the Reagan administration. But that
INF Treaty they explained to you was
not right. They just made some bad
mistakes on that, and they had some
ambiguities in there. We found some
memoranda in the Joint Chiefs' office
that said no, that was not right. They
explained the right treaty to you, and
therefore we're sorry, but you agreed
to something else?and we abolished
air-launched cruise missiles, too. We
abolished sea-launched cruise missiles.
But we forgot to tell you."
Is that what the Senator wants?
Mr. NICKLES. This Senator wants
to make sure, by the language we have
in this amendment, that nothing is
more binding on the United States
than it is on the Soviet Union.
If the Soviet Union is not bound we
do not want to be bound. That is all
this amendment does.
I want to make sure that the Sena-
tor is well aware of what the amend-
ment says.
Mr. NUNN. Mr. President, I ask the
Senator from Rhode Island how much
time does he have remaining?
The PRESIDING OFFICER. Five
minutes.
Mr. NICKLES. How much time does
this side have?
The PRESIDING OFFICER. Twelve
minutes to Senator WILSON.
Mr. NUNN. Mr. President, I close
with this comment: perhaps the Sena-
tor would rather have both sides
equally bound and know what is in the
treaty. We could say right here. that,
yes, the Reagan administration made
a mistake on INF. They thought they
were abolishing ground-launched
cruise missiles. Oh, but they made a
mistake. In the negotiating history
they abolished air-launched cruise
missiles and they abolished sea-
l