Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, as we work through the final days of the legislation session, we are apt to become mired in the details of our work. We can lose sight of the special opportunity we have, as legislators, to represent our fellow citizens and to conduct the business of a democratic society in the Nation's Capital. In this spirit, I wish to draw the Senate's attention to a very special anniversary one that I hope can inspire us to bring our efforts renewed appreciation for our blessings--and our duties--as legislators in the greatest democracy in human history. Ten years ago yesterday, the starkest symbol of human bondage in this century--the Berlin Wall--shook, cracked, and then collapsed. To be sure, it took time for all of it to by physically dismantled. Sections of it still stand, left as symbols all at once of man's capacity for evil and his insatiable drive to be free. But in one magnificent moment 10 years ago, without a shot being fired, people who had only known cold war captivity crossed the line and became free. They were helped across by many hands: by the American people who served by the millions in uniform and who put up trillions--trillions-- of dollars to fight the cold war; by the citizens of NATO and other allied nations who made similar sacrifices of blood and treasure; by many of their fellow countrymen who over many years kept small fires of freedom burning in their hearts for the day when the wall would come down; and, at critical moments, by great leaders. Joseph Shattan, a former White House speech writer and, now, a Bradley Fellow at the Heritage Foundation, has chronicled this leadership in his book ``Architects of Victory: Six Heroes of Cold War,'' published by Heritage, and excerpted recently in essay form in the Washington Times. He describes how six remarkable individuals-- Winston Churchill, Harry Truman, Knorad Adenauer, Alexander Solzhenitsyn, Pope John Paul II, and Ronald Reagan--seized their own moment in the cause of freedom. Mr. President, as Americans, we should on this day take special note of the two American Presidents--one Democrat, one Republican, who played such vital roles in bringing about the fall of the Berlin Wall ten years ago. Here is Shattan on Harry Truman: Underlying Truman's policies was the conviction that Soviet totalitarianism was no different than Nazi totalitarianism. In his view, both the Nazis and the communists violated human rights at home and sought to expand their empires abroad. To secure a world where democratic values might flourish, Truman believed the United States had to contain Soviet expansionism--through economic and military aid if possible, through force of arms if necessary. Over the long run, a successful policy of containment would cause Soviet leaders to lose their faith in the inevitability of a global communist triumph. Only then could negotiations with Moscow contribute to a safer, more peaceful world. Because the Truman administration's policy of containment set the course for U.S. foreign policy over the next 35 years, it seems in retrospect to have been a natural, even inevitable, response to Soviet aggressiveness. But it was nothing of the sort. Truman's predecessor, Franklin Roosevelt, had taken a markedly different approach toward Moscow--one aimed at cementing an enduring U.S.-Soviet friendship--and when Truman became president, he was determined to follow in FDR's footsteps, even if it meant ignoring his own instincts. But Truman gradually worked his way out from under FDR's long shadow and placed his own indelible stamp on U.S. foreign policy. Truman's decisive break with FDR's foreign policy came in a historic speech delivered before a joint session of Congress on March 12, 1947. ``I believe it must be the policy of the United States,'' he declared, ``to support free peoples who are resisting attempted subjugation by armed minorities or by outside pressures.'' Alonzo Hamby, one of Truman's biographers, rightly called this speech ``the decisive step in what would soon be called the Cold War.'' Harry Truman's steadfast commitment to ``free peoples'' assured that the Iron Curtain would encroach no further on freedom. But it took another President to push the Wall over. Here again is Shattan on Ronald Reagan: But while liberals frequently disparaged Mr. Reagan's intellect, the fact was that he subscribed wholeheartedly to one major truth that many of his intellectually sophisticated critics either never knew or had forgotten: Societies that encourage freedom and creativity tend to flourish, while societies that suppress liberty tend to stagnate. This was the central truth around which Ronald Reagan fashioned his political career. This was the crucial insight that he articulated with passion and eloquence and pursued with iron resolve. And this was the basis of his Soviet strategy. Underlying Mr. Reagan's approach to the Soviet Union was his profound (his critics would say ``childlike'' or ``simplistic'') faith in freedom. Mr. Reagan simply knew that there was no way a closed society like the Soviet Union could prevail against an open society like the United States once the open society made up its mind to win. And Mr. Reagan, years before he became president, decided that the United States would win the Cold War . . . The military buildup, the support of anti-communist movements worldwide (better known as the ``Reagan Doctrine''), the Strategic Defense Initiative, the covert assistance to the Polish trade union Solidarity, the economic sanctions against Moscow--all were meant to force an already shaky Soviet system to embark on a course of radical reform. These reforms (perestroika, glasnost) soon acquired a momentum of their own, and eventually brought down the Soviet Union. Mr. Reagan's approach to foreign policy was unprecedented. The traditional U.S. strategy was to seek to contain Soviet power and hope that, at some unspecified point in the future, containment would convince the communist ruling class to abandon its expansionist course. By contrast, Mr. Reagan sought not merely to contain the Soviets but to overwhelm them with demonstrations of U.S. power and resolve that left them with no alternative but to accept the choice he offered them: Change or face defeat. His success proved that great leadership does not depend on intellectual or historical sophistication. What is needed, above all, is the right set of convictions and the courage to stand by them. Mr. Reagan's beliefs about freedom and tyranny were uniquely rooted in the American experience, and his courage reflected the quiet self-confidence of the American heartland. His was truly a U.S. presidency that changed the world. Much has changed in 10 years. Yes, we still have walls to tear down-- on the Demilitarized Zone in Korea, around the island of Cuba, and everywhere that people around the globe still struggle for peace and freedom. But the Cold War is over. Freedom won. As we watch the many celebrations underway today--in Berlin, all over Europe, and elsewhere in the world--let us honor Cold War heroes, and rededicate ourselves to the cause of freedom they championed. And, my colleagues, as we conduct the people's business, let us seek to renew an abiding reverence for the freedom that brings us here.

Mr. KYL

Mr. KYL. Mr. President, I inadvertently missed rollcall No. 361 regarding the nomination of Carol Moseley-Braun. Had I been present, I would have voted ``aye.''

Mr. KYL

Mr. KYL. Mr. President, the Administrative Office of the U.S. Courts released a report in August that included some good news and some bad. On the one hand, the report indicated that bankruptcy filings for the 12-month period ending June 30, 1999 were down, albeit slightly--about 0.3 percent. On the other hand, it noted that the number of petitions filed still represented a 62.2 percent increase over the same period ending in 1995. Extraordinary circumstances can strike anyone, which is why it is important to preserve access to bankruptcy relief. No one disputes that there should be an opportunity to seek relief and a fresh start when someone is struck by terrible circumstances beyond his or her control-- for example, when families are torn apart by divorce or ill health. I suspect that creditors would be more than willing to work with someone when such tragedy strikes to help him or her through tough times. But there is a good deal of evidence that too many people who file for relief under Chapter 7 actually have the ability to pay back some, or even all, of what they owe. Inappropriate use of Chapter 7, or straight bankruptcy, imposes higher costs on the vast majority of consumers who make good on their obligations. The Justice Department estimates these costs at about $3.2 billion annually. This phenomenon of bankruptcy for the sake of convenience--bankruptcy as a financial planning tool--is what led to the drafting of the bill before us today. The Bankruptcy Reform Act, S. 625, is the product of a number of hearings, and months and months of deliberations. This bill has been in the legislative process for several years now. It enjoys broad bipartisan support, having been approved overwhelmingly by the Senate Judiciary Committee on a vote of 14 to 4. In fact, similar bipartisan legislation in the House of Representatives passed on May 5, by a lopsided vote of 313 to 108--an even greater margin than last year. The bill would establish a presumption that a chapter 7 bankruptcy filing--what is generally known as straight bankruptcy--should be dismissed or should be converted to Chapter 13 if, after taking into account secured debts and priority debts like child support and living expenses, the debtor could repay 25 percent or more of his or her general unsecured debt, or $15,000, over a five-year period. The debtor could rebut the presumption by demonstrating special circumstances to show that he or she does not have a meaningful ability to repay his or her debts. I suspect that most Americans would be surprised to find that this is not already the norm. At the moment, bankruptcy judges do not necessarily consider whether a debtor has a demonstrable capacity to repay his or her debts before granting Chapter 7 relief. Studies suggest that this means test we propose here would force between three percent and 15 percent of debtors to pay more to creditors. This represents a relatively small number of debtors, but they are the ones who have the means to repay, and fairness dictates that they do so. In short, the bill would steer individuals with the ability to repay some or all of their debts into Chapter 13 repayment plans, while preserving access to Chapter 7 for those who truly need its protection and the fresh start it would provide. This is a reasonable and balanced approach. Remember, when people run up debts they have no intention of paying, they shift a greater financial burden onto honest, hard-working families in America. Estimates are that bankruptcy costs every American family more than $400 a year. Treasury Secretary Lawrence Summers acknowledged as much during a recent hearing before the Finance Committee. When asked whether debt discharged in bankruptcy results in higher prices for goods and services as businesses have to offset losses, here is what he said: Certainly there is a strong tendency in that direction, and also towards higher interest rates for other borrowers who are going to pay back their debt. So when we hear opponents of the bill talk of their concern for consumers, let us remember the cost that the abuse of bankruptcy law imposes on the vast majority of consumers who responsibly abide by their obligations and pay back their debts. What we have here is really the most pro-consumer bill we will consider this year. I want to share with Senators a very good editorial that appeared in the Tribune on May 24, 1999. I ask unanimous consent that the editorial be printed in the Record at this point.

Mr. KYL. I want to stop at this point and single out a few provisions of the bill for comment. These are provisions that I believe illustrate the deficiencies in current law--provisions that demonstrate why this legislation represents common sense reform of the bankruptcy system. The first provision appears in Section 314 of the bill and provides that debts that are fraudulently incurred could no longer be discharged in Chapter 13--the same as in Chapter 7. Again, I think most Americans would be surprised to find out that this is not already the law. Currently, at the conclusion of a Chapter 13 plan, a debtor is eligible for a broader discharge than is available in Chapter 7, and this superdischarge can result in several types of debts, including those for fraud and intentional torts, being discharged whereas they could not be discharged in Chapter 7. The language of the bill tracks an amendment I offered last year, and would simply add fraudulent debts to the list of debts that are nondischargeable under Chapter 13. It is as simple as that. Here is what the Deputy Associate Attorney General, Francis M. Allegra, said about the dichargeability of fraudulent debts in a letter dated June 19, 1997: We are unconvinced that providing a (fresh start) under Chapter 13 superdischarge to those who commit fraud or whose debts result from other forms of misconduct is desirable as a policy matter. Here is what Judge Edith Jones of Fifth Circuit Court of Appeals said in a dissenting opinion to the report of the Bankruptcy Review Commission: The superdischarge satisfies no justifiable social policy and only encourages the use of Chapter 13 by embezzlers, felons, and tax dodgers. Judith Starr, the Assistant Chief of the Litigation Counsel Division of Enforcement of the Securities and Exchange Commission, testified before the House Judiciary Committee on March 18, 1998. Speaking about the fraud issue, she said: We believe that, in enacting the Bankruptcy Code, Congress never intended to extend the privilege of the ``fresh start'' to those who lie, cheat, and steal from the public. She goes on to say: A fair consumer bankruptcy system should help honest but unfortunate debtors get their financial affairs back in order by providing benefits and protections that will help the honest to the exclusion of the dishonest, and not vice versa. It is an anomaly of the current system that bankruptcy is often more attractive to persons who commit fraud than to their innocent victims. Bankruptcy should not be a refuge for those who have committed intentional wrongs, nor should it encourage gamesmanship by failing to provide real consequences for abuse of its protections. And she concludes: We support [the provision of the House bill] which makes fraud debts nondischargeable in Chapter 13 cases. Inducements to file under Chapter 13 rather than Chapter 7 should be aimed at honest debtors, not at those who have committed fraud. A final quotation: The Honorable Heidi Heitkamp, the Attorney General of North Dakota, testified to the following before the House Committee last year: When a true ``bad actor'' is in the picture--a scam artist, a fraudulent telemarketer, a polluter who stubbornly refuses to clean up the mess he has created there is a real potential for bankruptcy to become a serious impediment to protecting our citizenry. Furthermore, she says: We must all be concerned because bankruptcy is, in many ways, a challenge to the normal structure of a civilized society. The economy functions based on the assumption that debts will be paid, that laws will be obeyed, that order to incur costs to comply with statutory obligations will be complied with, and that monetary penalties for failure to comply will apply and will ``sting.'' If those norms can be ignored with impunity, and with little or no future consequences for the debtor, this bodes poorly for the ability of society to continue to enforce those requirements. Mr. President, I hope there will be no dissent to these anti-fraud provisions. Certainly, there should not be. Bankruptcy relief should be available to people who work hard and play by rules, yet fall unexpectedly upon hard times. Perpetrators of fraud should not be allowed to find safe haven in the bankruptcy code. The second amendment I offered, which was included in last year's bill, and which is again in this year's bill, is also found in Section 314. It says that debts that are incurred to pay non-dischargeable debts are themselves non-dischargeable. In other words, if someone borrows money to pay a debt that cannot be erased in bankruptcy, that new debt could not be erased either. The idea is to prevent individuals from gaming the system and obtaining a discharge of debt that would otherwise be non-dischargeable. I want to emphasize that we have taken special care to ensure that debts incurred to pay non-dischargeable debts will not compete with non-dischargeable child- or family-support in a post-bankruptcy environment. The third amendment of mine is reflected in Section 310 of the bill, and it is intended to discourage people from running up large debts on the eve of bankruptcy, particularly when they have no ability or intention of making good on their obligations. Current law effectively gives unscrupulous debtors a green light to run up their credit cards just before filing for bankruptcy, knowing they will never be liable for the charges they are incurring. That is wrong, and it has got to stop. The provision would establish a presumption that consumer debt run up on the eve of bankruptcy is non-dischargeable. The provision is not self-executing. In other words, it would still require that a lawsuit be brought by the creditor against the debtor so that a bankruptcy judge could consider the circumstances and assess the claim. But if this provision achieves the intended purpose, debtors will not only minimize the run-up of additional debt, they will have more money available after bankruptcy to pay priority obligations, including alimony and child support. Again, special care has been taken to ensure that we are only talking about consumer debts incurred within 90 days of bankruptcy for goods or services that are not necessary for the maintenance or support of the debtor or dependent child. We want to be sure that family obligations are met. I will discuss one other aspect of the bill before closing, and that relates to the many provisions that Senators Hatch, Grassley, and I crafted last year--and which have been improved on in this year's bill--to protect the interests of women and children. Nothing in the earlier versions of the bill reduced the priority of, or any of the protections that are accorded to, child-support and alimony under current law. Nevertheless, concerns were expressed that provisions of the legislation might indirectly or even inadvertently affect ex-spouses and children of divorce. Assuming that critics were operating in good faith--and because our intent was always to ensure that family obligations were met first--Senators Hatch, Grassley, and I crafted an amendment last year to remove any doubt whatsoever about whether women and children come first. As now written, the bill elevates the priority of child-support from its current number seven on the priority list for purposes of payment to number one. Our amendment mandates that all child support and alimony be paid before all other obligations in a Chapter 13 plan. It conditions both confirmation and discharge of a Chapter 13 plan upon complete payment of all child support and alimony that is due before and after the bankruptcy petition is filed. It helps women and children reach exempt property and collect support payments notwithstanding contrary federal or state law. And it extends the protection accorded an ex-spouse by making almost all obligations one ex-spouse owes to the other non-dischargeable. Many of us have heard the argument by opponents of this bill that women and children will be forced to compete with credit-card companies to collect resources from debtors, particularly once they emerge from bankruptcy. The provisions I just described answer that concern. Moreover, I think it is important to point out that the post-discharge debtor generally does not have the option to pay a credit-card company before his or her former spouse anyway. More and more child support is withheld from wages by the state. In other words, child support obligations are paid before the non-custodial parent or former spouse ever receives his or her paycheck. If withholding is not in place when the bankruptcy is filed, it can be put in place quickly under other provisions of the pending bill. If any of these provisions can be improved on further, I know that Senators Hatch and Grassley, and myself would be more than willing to modify them. My concern is that we do not allow concern for women and children to become an excuse for opposing the broader bill and letting other debtors off the hook for debts they are able to repay. That would only hurt women and children in need by forcing them to bear the higher costs associated with such bankruptcy abuse. Mr. President, this is a good bill--a bill that protects debtors who truly need relief, while also protecting the interests of consumers who meet their obligations to creditors by repaying their debts. It protects the interests of women and children through a series of new provisions. I hope my colleagues will join me in voting for this fair and balanced piece of legislation. I yield the floor. Mr. HARKIN addressed the Chair.

Mr. KYL

Mr. KYL. Mr. President, Friday's Washington Post contained an excellent op-ed piece by columnist Charles Krathammer arguing that, contrary to claims now being made by senior Clinton Administration officials, the recent defeat of the Comprehensive Test Bank Treaty is not evidence of an emerging isolationist trend in the Republican party. I ask that the column be printed in the Record. The material follows: The Phony Battle Against `Isolationism' After seven years, the big foreign policy thinkers in the Clinton administration are convinced they have come up with a big idea. Having spent the better part of a decade meandering through the world without a hint of strategy--wading compassless in and out of swamps from Somalia to Haiti to Yugoslavia--they have finally found their theme. National Security Adviser Sandy Berger unveiled it in a speech to the Council on Foreign Relations last week. In true Clintonian fashion, Berger turned personal pique over the rejection of the test ban treaty into a grand idea: The Democrats are internationalists, their opponents are isolationists. First of all, it ill behooves Democrats to call anybody isolationists. This is the party that in 1972 committed itself to ``Come home, America.'' That cut off funds to South Vietnam. That fought bitterly to cut off aid to the Nicaraguan contras and the pro-America government of El Salvador. That mindlessly called for a nuclear freeze. That voted against the Gulf War. They prevailed in Vietnam but thankfully were defeated on everything else. The contras were kept alive, forcing the Sandinistas to agree to free elections. Nicaragua is now a democracy. El Salvador was supported against communist guerrillas. It, too, is now a democracy. President Reagan faced down the freeze and succeeded in getting Soviet withdrawal of their SS-20 nukes from Europe, the abolition of multiwarhead missiles, and the first nuclear arms reduction in history. And the Gulf War was fought, preventing Saddam from becoming the nuclear-armed hegemon of the Persian Gulf. ``The internationalist consensus that prevailed in this country for more than 50 years,'' claimed Berger, ``increasingly is being challenged by a new isolationism, heard and felt particularly in the Congress.'' Internationalist consensus? For the last 20 years of the Cold War, after the Democrats lost their nerve over Vietnam, there was no internationalist consensus. Internationalism was the property of the Republican Party and of a few brave Democratic dissidents led by Sen. Henry Jackson--who were utterly shut out of power when the Democrats won the White House. Berger's revisionism is not restricted to the Reagan and Bush years. He can't seem to remember the Clinton years either. He says of the Republicans, that ``since the Cold War ended, the proponents of this [isolationist] vision have been nostalgic for the good old days when friends were friends and enemies were enemies.'' Cold War nostalgia? It was Bill Clinton who early in his presidency said laughingly, ``Gosh, I miss the Cold War.'' Then seriously, ``We had an intellectually coherent thing. The American people knew what the rules were.'' What exactly is the vision that Berger has to offer? What does the Clinton foreign policy stand for? Engagement. Hence the speech's title, ``American Power-- Hegemony, Isolation or Engagement.'' Or as he spelled it out: ``To keep America engaged in a way that will benefit our people and all people.'' Has there ever been a more mushy, meaningless choice of strategy? Engagement can mean anything. It can mean engagement as a supplicant, as a competitor, as an ally, as an adversary, as a neutral arbiter. Wake up on a Wednesday and pick your meaning. The very emptiness of the term captures perfectly the essence of Clinton foreign policy. It is glorified ad hocism. It lurches from one civil war to another with no coherent logic and with little regard for American national interest-- finally proclaiming, while doing a victory jig over Kosovo, a Clinton Doctrine pledging America to stop ethnic cleansing anywhere. It lurches from one multilateral treaty to another--from the Chemical Warfare Convention that even its proponents admit is unverifiable to a test ban treaty that is not just unverifiable but disarming--in the belief that American security can be founded on promises and paper. If there is a thread connecting these meanderings, it is a woolly utopianism that turns a genuinely felt humanitarianism and a near-mystical belief in the power of parchment into the foreign policy of a superpower. The choice of engagement as the motif of Clinton foreign policy is a self-confession of confusion. Of course we are engaged in the world. The question is: What kind of engagement? Engagement that relies on the fictional ``international community,'' the powerless United Nations or the recalcitrant Security Council (where governments hostile to our interests can veto us at will) to legitimatize American action? Or engagement guided by American national interests and security needs? Engagement that squanders American power and treasure on peacekeeping? Or engagement that concentrates our finite resources on potential warfighting in vital areas such as the Persian Gulf, the Korean peninsula and the Taiwan Strait? Berger cannot seem to tell the difference between isolationism and realism. Which is the fundamental reason for the rudderless mess that is Clinton foreign policy.

Mr. KYL

Mr. KYL. John Chafee was a gentleman with every quality that term connotes. He always treated everyone with the utmost respect. He was unfailingly courteous to everyone. I never heard him utter a bad word about anyone. He took his job very seriously, but he did not take himself seriously. He always evaluated proposals, first asking what his constituents would think about them. He always sought to accommodate me, personally. I recall the last request I made of him to break some precedents and quickly get a bill through to name a U.S. courthouse in Phoenix for U.S. Supreme Court Justice Sandra Day O'Connor because we did have to break some precedents in order to accomplish that. He did it with no problem whatever. Others have detailed his considerable service to this country, and I will not repeat that. However, it runs the gamut from military service to service in the Senate and much, much more. I simply want to recall John Chafee, the marine, the gentleman. If every one of us in this Chamber comported ourselves as Senator Chafee did, the Senate would be a much better place. That is a legacy that any person, I believe, would be proud to have. It is John Chafee's legacy. He will be missed. But he will be remembered. God bless John Chafee and his family.

Mr. KYL

Mr. KYL. Mr. President, the arguments against the Partial-Birth Abortion Act keep changing. During previous consideration, for example, we heard from proponents of the procedure that it was used in only rare and tragic cases, so it would be wrong to ban it. Here is how the Planned Parenthood Federation of America characterized partial-birth abortion in a November 1, 1995 news release: ``The procedure, dilation and extraction (D&X), is extremely rare and done only in cases when the woman's life is in danger or in cases of extreme fetal abnormality.'' Planned Parenthood was not the only group to make such sweeping statements at the time. But it did not take long for the story to unravel. On February 26, 1997, the New York Times reported that Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, admitted he ``lied in earlier statements when he said [partial-birth abortion] is rare and performed primarily to save the lives or fertility of women bearing severely malformed babies.'' According to the Times, ``He now says the procedure is performed far more often than his colleagues have acknowledged, and on healthy women bearing healthy fetuses.'' Mr. Fitzsimmons told American Medical News the same thing--that is, the vast majority of these abortions are performed in the 20-plus week range on healthy fetuses and healthy mothers. He said, ``The abortion rights folks know it, the anti-abortion folks know it, and so, probably, does everyone else.'' We heard about the frequency of the procedure from doctors who performed it. The Record of Bergen County, New Jersey, published an investigative report revealing that far more of these abortions were performed in New Jersey and across the country than the abortion lobby wanted Americans to believe. Now, after the truth is exposed, we see an advertising campaign by a group called the Center for Reproductive Law and Policy, claiming that it is the legislation that is deceptive and extreme. The claim is that the bill would prohibit ``some of the safest and most commonly used medical procedures and risk the health and well-being of women.'' Apparently out of convenience, opponents have now flipped their argument and claim the procedure is common, not rare at all--which is what supporters of the legislation contended all along. On the issue of safety, they have been more consistent. They claim the procedure is safe, but here is what the former Surgeon General of the United States, Dr. C. Everett Koop, had to say on the subject. According to Dr. Koop, ``partial-birth abortion is never medically necessary to protect a mother's health or future fertility. On the contrary, this procedure can pose a significant threat to both.'' A threat to health and fertility. We heard the same thing from other medical experts during hearings in the Judiciary Committee a few years ago. Dr. Nancy Romer, a practicing Ob-Gyn from Ohio, testified that in her 13 years of experience, she never felt compelled to recommend this procedure to save a woman's life. ``In fact,'' she said, ``if a woman has a serious, life threatening, medical condition this procedure has a significant disadvantage in that it takes three days.'' Even Dr. Warren Hern, the author of the nation's most widely used textbook on abortion standards and procedures, is quoted in the November 20, 1995 edition of American Medical News as saying that he would ``dispute any statement that this is the safest procedure to use.'' He called it ``potentially dangerous'' to a woman to turn a fetus to a breech position, as occurs during a partial-birth abortion. Dangerous, Mr. President. The American College of Obstetricians and Gynecologists was quoted by Charles Krauthammer in a March 14, 1997 column as indicating that there are ``no circumstances under which this procedure would be the only option to save the life of the mother and preserve the health of the woman.'' And of course, the American Medical Association (AMA), on the eve of the Senate vote during the 105th Congress, endorsed the bill to ban the technique. According to the chairman of the AMA's board of trustees, ``it is a procedure which is never the only appropriate procedure and has no history in peer reviewed medical literature or in accepted medical practice development.'' To those who call the Partial-Birth Abortion Ban Act extreme, I ask: Is it extreme to want to ban a procedure that medical experts tell us is dangerous and threatening to women? Or are the extremists those who are so radically pro-abortion that they defend even a such a dangerous and threatening procedure? What about those rarest of instances when it might be necessary to use this dangerous procedure to save a woman's life? Those are provided for, despite what President Clinton said when he vetoed the Partial- Birth Abortion Ban Act on October 13, 1997. He said he did so because the bill did not contain an exception that ``will adequately protect the lives and health of the small group of women in tragic circumstances who need an abortion performed at a late stage of pregnancy to avert death or serious injury.'' Let me read the language of the bill that was vetoed. This is language from the bill's proposed section 1531. The ban, and I am quoting, ``shall not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury.'' Identical language providing a life-of-the-mother exception appears in this year's version of the bill, S. 1629, as well. I do not know how the language can be any clearer. Mr. President, another charge now being made against this bill is that it is unconstitutional. Of course, we all can speculate about how the U.S. Supreme Court might rule on the matter. The Eighth Circuit Court of Appeals recently struck down partial-birth abortion bans in Nebraska, Iowa, and Arkansas, but a three-judge panel from the Fourth Circuit stayed an injunction against a similar Virginia law, pending review by the full court. The Fourth Circuit has yet to rule, but observers expect it to uphold the Virginia ban. Ultimately, the U.S. Supreme Court is going to have to rule on the question, given the differing Circuit Court decisions. And as Harvard Law School Professor Lawrence Tribe noted in a November 6, 1995 letter to Senator Boxer, there are various reasons ``why one cannot predict with confidence how the Supreme Court as currently composed would rule if confronted with [the bill].'' He noted that the Court has not had any such law before it. And he noted that ``although the Court did grapple in 1986 with the question of a state's power to put the health and survival of a viable fetus above the medical needs of the mother, it has never directly addressed a law quite like [the Partial-Birth Abortion Ban Act].'' Mr. President, neither Roe v. Wade nor any subsequent Supreme Court case has ever held that taking the life of a child during the birth process is a constitutionally protected practice. In fact, the Court specifically noted in Roe that a Texas statute--one which made the killing of a child during the birth process a felony--had not been challenged. That portion of the law is still on the books in Texas today. Remember what we are talking about here: ``an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.'' That is the definition of a partial-birth abortion in the pending legislation. So we are talking about a child whose body, save for his or her head, has been delivered from the mother--that is, only the head remains unborn. No matter what legal issues are involved, I hope no one will forget that we are talking about a live child who is already in the birth canal and indeed has been partially delivered. I dare say that, even if the Court were somehow to find that a partially delivered child is not constitutionally protected, the Partial-Birth Abortion Ban Act could still be upheld under Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey. Under both Roe and Casey, the government may prohibit abortion after viability, except when necessary to protect the life or health of the mother. But the exception would never arise here because, as the experts tell us, this procedure is never medically necessary. Although I believe the law would be upheld by the Court, I will concede that no one can say with certainty how the Supreme Court will rule until it has ruled. Until then, I suggest that we not use that as an excuse to avoid doing what we believe is right. The facts are on the table. The bill includes a life-of-the-mother exception--an exception that would probably never be invoked given that medical experts tell us a partial-birth abortion is never necessary to protect the life or health of a woman, and indeed may even pose a danger to life and health. Let us do what is right and put a stop to what our colleague, Senator Daniel Patrick Moynihan, has appropriately characterized as infanticide. Let us pass this bill.

Mr. KYL

Mr. KYL. Mr. President, I want to take a few minutes today to correct some misconceptions about the reasons why the Senate voted to reject the Comprehensive Test Ban Treaty Wednesday, and the impact its rejection will have on efforts to control the spread of nuclear weapons. Some have asserted that the Senate acted to reject the treaty for partisan political reasons. At the same time, they threatened grave political consequences for those who opposed the treaty. Obviously, there is a lot more politics in the aftermath of the treaty's rejection (by supporters) than in its not popular, but principled rejection. Simply put, Senators voted to defeat the treaty because it jeopardized our nation's security by undermining the U.S. nuclear deterrent that has served our country so well for the past 50 years. Nor was this evidence that Republicans are isolationist, as the President charged. It is Republicans who support free trade agreements (rather than the President's party, which is dominated by labor union isolationism). And Republicans strongly supported NATO expansion. Our distinguished colleague, Senator Lugar, summed up the case against the CTBT quite well stating, I do not believe that the CTBT is of the same caliber as the arms control treaties that have come before the Senate in recent decades. Its usefulness to the goal of non- proliferation is highly questionable. Its likely ineffectuality will risk undermining support and confidence in the concept of multi-lateral arms control. Even as a symbolic statement of our desire for a safer world, it is problematic because it would exacerbate risks and uncertainties related to the safety of our nuclear stockpile. The majority leader and other opponents of this treaty never asked Members to vote against it for reasons of party loyalty. Rather, Senators were persuaded to reject the treaty by the facts about its effect on our security. In fact, Republican Senators were on both sides of this issue, while Democrats paradoxically, voted lockstep, except for Senator Byrd, who voted present. Unfortunately, the President and the Democratic leader have asserted that the process for consideration of the treaty was unfair, and have implied they were forced to vote on the treaty. With all due respect, these assertions strike me as nothing more than sour grapes. Let's review the history that brought us to the vote yesterday. For 2 years, the President and other supporters of the CTBT called on the Senate to take up the treaty. In his State of the Union Address in 1998, President Clinton called for it to be taken up ``this year.'' In June 1998, President Clinton said it was ``important that the Senate debate and vote on the Comprehensive Test Ban Treaty without delay.'' On August 9 of this year, the President asked ``the full Senate to vote for ratification as soon as possible.'' On April 1 of this year, Secretary of State Albright gave a speech calling for action on the CTBT, ``this year, this session, now.'' And some of our colleagues on the other side of the aisle were quite outspoken in calling for a vote on the treaty. In 1998, the Democratic leader, Senator Daschle said on the Senate floor that ``We believe that it's important for us to move this very important treaty this year.'' And just over 2 weeks ago, he stood on the Senate floor and said, ``I still think, one way or the other, we ought to get to this treaty, get it on the floor, debate it, and vote on it.'' And as we all know, it was the threat to bring the business of the Senate to a halt that led the majority leader to offer a unanimous consent agreement on the CTBT. On September 8--with 22 days remaining in the fiscal year to dispose of the remaining appropriations bills-- Senator Dorgan said the following: When [the majority leader] comes to the floor, I intend to come to the floor and ask him when he intends to bring this treaty to the floor. If he and others decide it will not come to the floor, I intend to plant myself on the floor like a potted plant and object. I intend to object to other routine business of the Senate until this country decides to accept the moral leadership that is its obligation and bring this treaty to the floor for a debate and a vote. Supporters of the CTBT clearly wanted a vote on the treaty; it now turns out they actually only wanted a vote if they could win. Well, that's not the way it works. I have also been surprised that some Senators have complained that the time for consideration of the treaty was too short. Let's remember that the time-frame for consideration of the treaty was established by unanimous consent. In fact, the majority leader first offered a unanimous-consent agreement on September 30. The Democratic leader objected to that first request, asking for it to be modified to add more time--4 more hours of general debate, and up to 8 hours for amendments (in addition to the 10 hours already allocated). The majority leader accommodated the Democratic request, and on October 1, a modified version of the unanimous-consent request was again offered, and not a single Senator objected either to the time or to the date. The latter is also important, because setting the date for the vote on October 12 or 13 (it occurred on the 13th) meant there were almost 2 weeks for ``education'' of Senators who had not already become educated on the treaty. (Presumably those who were fomenting consideration of the treaty had taken the time to familiarize themselves with it. They can hardly argue they needed more time in view of their insistence.) In any event, we all agreed on a time-table to take up the treaty. This is why I am disappointed that some have charged that the majority leader scheduled the vote out of some sense of partisanship. If Members had a concern about the time frame for the treaty's consideration, any single Senator could have objected--but none did. And the week after the agreement, three Senate committees held hours of hearings. Responsible Senators had plenty of time to learn enough to make an informed decision, witness the early expression of support by those who said others needed more time (i.e., those who didn't agree with them). I am also disappointed by assertions that, by rejecting the CTBT, the United States Senate has diminished America's moral authority in the fight against nuclear proliferation. I deeply regret that this sentiment has been echoed, and to some degree instigated, by Members of this body and the administration who find themselves on the losing side of the debate. Nothing could be further from the truth. By rejecting this deeply flawed accord, the Senate has anchored the United States firmly on the moral high ground. My vote against this treaty rested on three premises: First, we must be able to test if we are to maintain safe and reliable nuclear weapons because they help to secure peace for American citizens and for the rest of the world. Second, this unenforceable, unverifiable treaty would have little if any impact on the problem of proliferation. In fact, it might actually cause more nations to seek nuclear weapons if they became unsure of the reliability of the U.S. nuclear umbrella. It is vitally important that our Nation pursue efforts to combat nuclear proliferation. But we should pursue meaningful efforts with real effects. Unfortunately, while criticizing treaty opponents of not being serious about proliferation, it is the Clinton administration that has not been willing to take serious actions to combat proliferation. For example, in 1997, when reports began to surface about Russian missile assistance to Iran, I led a group of 99 Members of the House and Senate, in writing to the President to urge him to invoke sanctions to halt this trade. The President refused. In November 1997, the Senate unanimously passed a concurrent resolution that I sponsored, expressing the sense of the Congress that the President should sanction the Russian organizations involved in selling missile technology to Iran. The House also passed this resolution overwhelmingly by a vote of 414 to 8. Again the President refused to impose sanctions. The Congress tried again to spur the administration to action 6 months later, when we passed the Iran Missile Proliferation Sanctions Act mandating sanctions on any organization involved in assisting Iran's missile program. This bill passed the Senate by a vote of 90 to 4. Yet when it reached the President's desk, he vetoed the bill. As these examples show, this administration is simply not willing to take the tough actions necessary to prevent proliferation. It is these meaningful measures that will reduce proliferation, not an unenforceable, unverifiable treaty. The third and final reason I voted against the CTBT is that the Constitution establishes the Senate as co-equal with the President in committing this country to treaties. I take this responsibility seriously, and will not simply rubber-stamp any arms control agreement that does not meet at least minimum standards--and this one does not. Rejection will help future negotiators insist on meaningful provisions that are verifiable and enforceable. Each of these premises is morally sound; in my view they are morally superior than a vote for this flawed pact, no matter how well- intentioned. Because this treaty would have harmed our security, its ratification would have been an abdication of our moral responsibility to maintain peace through strength. In 1780, President George Washington said, ``There is nothing so likely to produce peace as to be well prepared to meet an enemy.'' Two hundred years later, President Ronald Reagan called this doctrine ``Peace Through Strength.'' History has redeemed the judgment of Ronald Reagan in first adopting this stance with the Soviet Union; I believe that history will redeem the rejection of the CTBT as well.

Mr. KYL

Mr. KYL. Mr. President, Congress has no greater responsibility than to ensure that our Armed Forces--the guardians of the freedoms which all Americans cherish so dearly--are given the resources they need to carry out their mission. Consequently, the Defense Appropriations bill is one of the most important pieces of legislation that we pass each year. As others have expressed, this is by no means a perfect piece of legislation. There are a number of items contained in this bill that do not meet the most urgent needs of the Armed Forces. At a time when the men and women who serve in uniform are being called upon to serve the interests of the United States in a growing number of places--Bosnia, Kosovo, Haiti, Iraq, and the list goes on--Congress must ensure that the most critical needs of the Armed Forces are met first. However, I believe that the strengths of this conference report outweigh its faults. The report does contain funding to address a growing number of readiness and quality-of-life issues currently challenging our military. Our men and women in uniform need to know that their Congress supports them, and voting for this conference report is one way to demonstrate that support. So, Mr. President, although I believe that Congress can always do a better job of directing defense dollars where they are most needed, I also I believe that there is much in this conference report that addresses critical needs of the military, and that is why I voted in favor of the report.

Mr. KYL

Mr. KYL. Might I inquire of the distinguished chairman of the committee if I could make a brief statement.

Mr. KYL. Mr. President, earlier today, the Senator from Illinois claimed that President Bush supported a moratorium on nuclear testing. This assertion is inaccurate. I ask unanimous consent to have printed in the Record President Bush's statement upon signing the Fiscal Year 1993 Energy and Water Development Appropriations Act, on October 2, 1992.

Mr. KYL. I emphasize the following excerpt from President Bush's statement: Despite the dramatic reductions in nuclear arsenals, the United States continues to rely on nuclear deterrence as an essential element of our national security. We must ensure that our forces are as safe and reliable as possible. To do so, we must continue to conduct a minimal number of underground nuclear tests, regardless of the actions of other countries. The moratorium on testing to which the Senator from Illinois referred was not requested by President Bush. It was enacted by Congress as the Hatfield, Exon, Mitchell prohibition on testing, over President Bush's objections. In a subsequent report to Congress, the President responded to this prohibition as follows: * * * the administration has concluded that it is not possible to develop a test program within the constraints of Public Law 102-377 [the FY '93 Energy and Water Appropriations Act] that would be fiscally, militarily, and technically responsible. The requirement to maintain and improve the safety of our nuclear stockpile and to evaluate and maintain the reliability of U.S. forces necessitates continued nuclear testing for those purposes, albeit at a modest level, for the foreseeable future. The administration strongly urges the Congress to modify this legislation urgently in order to permit the minimum number and kind of underground nuclear tests that the United States requires, regardless of the action of other States, to retain safe, reliable, although dramatically reduced deterrent forces.

Mr. KYL. Mr. President, I rise today to explain why I intend to vote against the Comprehensive Test Ban Treaty (CTBT). I think that the words of President Ronald Reagan serve as the most appropriate and powerful way to begin this discussion. President Reagan frequently reminded us, ``We must always remain strong, so that we will always be free.'' The first question we must ask ourselves as we consider this vote is whether the CTBT jeopardizes the strength that the American people have relied upon for 50 years to ensure that this Nation remains free and at peace. Unfortunately, after careful consideration, I have concluded that the CTBT does jeopardize our strength by causing real harm to the very backbone of America's security--its safe, reliable, and credible, nuclear deterrent. Some of my colleagues have argued that the Senate should postpone final action on the CTBT, that defeating the treaty today sends the wrong message to the world, that somehow the Senate would be signaling to rogue states and others that the United States thinks it is acceptable to develop nuclear weapons. I could not disagree more. The Senate will reject this treaty because it harms America's nuclear deterrent and because it does nothing meaningful to ensure that the spread of nuclear weapons is halted. Regardless of the outcome of the CTBT vote, the world should know that this Senate remains committed to preventing the spread of nuclear weapons, and that we will continue to support the strongest possible actions against proliferant states. Nor should the rest of the world misinterpret another aspect of the Senate's rejection of the CTBT. The main message of the Senate's action today is that our constitutional democracy, with its cherished checks and balances, is alive and well. Through the wisdom of our Founding Fathers, the Constitution makes the treaty-making power a shared power. The Senate, through its obligation to provide advice and consent to treaties, acts as the ``quality control mechanism'' to ensure that the President does not bind the Nation to an international commitment that is not in its best interests. Before the United States is bound by the terms of an international agreement such as the CTBT, the President and the Senate must both agree to its terms. In rejecting the CTBT, the Senate is sending an explicit message that the United States does not have an international legal obligation to adhere to the provisions of the treaty. If the President were to determine that the United States must conduct tests to ensure the safety or reliability of our nuclear arsenal, the United States would be entitled to do so. Perhaps most importantly, the Senate's rejection of the CTBT will send a clear message that the United States will not sign up to flawed treaties that are not in the nation's interest. And the men and women who represent the United States in international negotiations will know that when they stand up to negotiating partners in order to protect America's interests in future treaty negotiations, the Senate will not only support them, it will expect them to forcefully advocate a position that protects those interests. Supporters of the CTBT would have the American people believe that to cast a vote against the treaty is merely a political act designed to embarrass the President. I do not see how anyone who has actually watched the Senate's careful deliberations--both in its committees and the floor--in recent weeks can honestly reach such a conclusion. I think that what the Senate had done through its thorough hearings and floor debate is to demonstrate beyond any reasonable doubt that this treaty faces certain defeat because of the substantive arguments against it that have been persuasively been presented to this body. The inescapable fact about the CTBT is that it is a fatally flawed treaty--it jeopardizes this Nation's nuclear deterrent, it will not contribute to the cause of nonproliferation, and it is unverifiable and unenforceable. Although these arguments have already been made in depth here on the floor, they bear reinforcement as Senators prepare to cast their votes. First, the CTBT threatens the Nation's nuclear deterrent--the very backbone of America's security for the past 50 years. To have an effective nuclear deterrent, we must have absolute confidence in the safety and reliability of our nuclear weapons. This requires periodic nuclear tests to ensure that we understand, for example, the effects of aging on our weapons and the best way to mitigate those effects. Again, as with the maintenance of any complex weapon, we must be able to test, to detect technical or safety problems that arise in our nuclear stockpile. The administration's Stockpile Stewardship Program may well help the United States to better understand our nuclear arsenal, but it is unproven, it may never be an adequate substitute for actual tests, and it is already behind schedule. A week's worth of expert testimony bears this out. As C. Paul Robinson, the current Director of Sandia National Laboratory, testified before the Armed Services Committee last week: I and others who are, or have been, responsible for the safety and reliability of the U.S. stockpile of nuclear weapons have testified to this obvious conclusion [that testing is the preferred methodology] many times in the past. To forego that validation through testing is, in short, to live with uncertainty. Second, the CTBT will not contribute to the cause of nonproliferation. Countries will make decisions about whether to pursue nuclear weapons based on hard-headed calculations of their security interests. This fact has been demonstrated time and again. The existence of an ``international norm'' against the pursuit of nuclear weapons, created by the 1968 Nuclear Non-Proliferation Treaty (NPT), has not stopped a number of states, including Iran, Iraq, and North Korea from attempting to develop nuclear weapons. Furthermore, the United States has not tested in 8 years, yet in that same timeframe, five other nations have tested. Third, the CTBT is unverifiable, meaning that states who choose to violate the CTBT may never be caught, and it is unenforceable, meaning that violators who are caught will likely go unpunished. As the October 3 Washington Post pointed out, a recent assessment by the Central Intelligence Agency concluded that the CIA ``cannot monitor low-level tests by Russia precisely enough to ensure compliance with the CTBT.'' And as C. Paul Robinson, the Director of Sandia National Laboratory, said in testimony before the Armed Services Committee on October 7: . . . [c]ompliance with a strict zero-yield requirement is unverifiable. The limitations of verifiability introduce the possibility of inconsistent observance of the ban under the threshold of detectability. Speaking to the issue of lack of enforceability, our colleague Richard Lugar recently noted: This treaty simply has no teeth . . . . The CTBT's answer to illegal nuclear testing is the possible implementation of sanctions. It is clear that this will not prove particularly compelling in the decisionmaking processes of foreign states intent on building nuclear weapons. For those countries seeking nuclear weapons, the perceived benefits in international stature and deterrence generally far outweigh the concern about sanctions that could be brought to bear by the international community. Mr. President, for all the reasons my colleagues and I have cited throughout this debate, I believe the only prudent course is for the Senate to demonstrate strength and good sense worthy of Ronald Reagan by rejecting this flawed CTBT. Mr. President, I ask unanimous consent to have printed in the Record a letter from Dr. Henry Kissinger to the chairman of the Foreign Relations Committee.

Mr. KYL. Mr. President, I will read excerpts from the letter. It is instructive that Henry Kissinger has written the following: As a former Secretary of State, I find the prospect that major treaty might fail to be ratified extremely painful. But the subject of this treaty concerns the future security of the United States and involves risks that make it impossible for me to recommend voting for the treaty as it now stands. He then went on to talk about the experts who believe the treaty to be unverifiable, and then the concerns expressed by the CIA about recent ambiguous activities with respect to Russia; the impossibility, on his part, to ignore the concerns expressed by people such as the former Secretaries of Defense, CIA Directors, and National Security Advisers; and the weakness of the enforcement mechanism of the treaty. He concludes in the following fashion: I am not persuaded that the proposed treaty would inhibit nuclear proliferation. Restraint by the major powers has never been a significant factor in the decisions of other nuclear aspirants, which are driven by local rivalries and security needs. Nor is the behavior of the rogue states such as Iraq, Iran, or North Korea likely to be affected by this treaty. They either will not sign or, if they sign, will cheat. And countries relying on our nuclear umbrella might be induced by declining confidence in our arsenal--and the general impression of denuclearization--to accelerate their own efforts. For all these reasons, I cannot recommend a vote for a comprehensive test ban of unlimited duration.

Mr. KYL. Yes.

Mr. KYL. Mr. President, deterrence has long been a primary component of U.S. security policy. In the cold war, nuclear weapons were the backbone of our national deterrent. The threat of unacceptable damage in response to aggression was central to inhibiting the Soviet Union's expansionist aims. Moreover, the credibility of the U.S. nuclear guarantee provided for ``extended deterrence'' against attacks on our friends and allies. While the conditions today are much different from the past, our nuclear weapons continue to serve as an essential hedge against a very uncertain future with both Russia and China, two states that highly value their own nuclear forces. Equally important, deterrence--backed by credible nuclear forces--remains the first line of defense against an even broader range of threats than in the past, including rogue states armed with weapons of mass destruction. The nuclear balance of terror that once defined our relationship with the Soviet Union is no longer central in our relations with Russia. Yet, even as we work to achieve a more democratic and open Russia, nuclear weapons appear to play a growing role in Moscow's security strategy, including declaratory policy and defense planning. Whether to overcome conventional weakness or as a means to retain one of its last vestiges of superpower status, Russia is continuing to modernize its nuclear forces. The retention of thousands of theater nuclear weapons, the deployment of the new mobile SS-27 ICBM, and the continuing investment in its massive nuclear weapons infrastructure demonstrate how important these weapons are to Moscow and lend credence to the concerns that Russia may have recently tested new nuclear weapons to provide the foundation for its future security strategy. There are many fundamental questions about Russia's political and economic future that today can not be answered with certainty. What is clear, however, is that Russia will continue to possess formidable, modern nuclear forces no matter how these questions are answered over time. For this reason, it remains imperative for us to retain a credible nuclear deterrent capability to guard against the reversal of our relations with a potentially hostile and nuclear-armed Russia. The strategic uncertainties associated with China are even greater than those with Russia. There are clear indications of qualitative improvements and quantitative increases to the Chinese nuclear arsenal. The Cox committee found that China is actively pursuing miniaturized nuclear warheads and MIRV technology, developing more accurate and ballistic missiles, and building a larger arsenal. Recent Chinese tests of a new medium-range ballistic missile, the DF-31 and public declarations of its development of enhanced radiological weapons serve to reinforce these findings. Similarly, a recent National Intelligence Estimate forecasts increases in the Chinese strategic arsenal and investment in technologies, such as penetration aids, designed to defeat any United States missile defense. Perhaps most disturbing, the strategic intentions of both Russia and China appear increasingly antagonistic toward the United States. This past August they jointly announced a strategic partnership as a counterweight to what they termed U.S. ``hegemonic ambitions.'' As he met with Chinese President Jiang Zemin, President Yeltsin declared himself ``in fighting form, ready for battle, especially with Westerners,'' and complained that ``some nations are trying to build a world order that would be convenient only for them, ignoring that the world is multi-polar.'' Given the uncertainties surrounding the future political and military developments in these two states, experience and prudence suggest the need for a hedge that only credible nuclear forces can provide. While deterrence of rogue states armed with weapons of mass destruction is very different than deterrence as we understood it in the cold war, an overwhelming retaliatory capability--and the fear of a possible nuclear repsonse--remains critical to countering this new set of ever more dangerous threats. Despite sustained and determined efforts to de-legitimize our nuclear weapons, and assertions that their utility ended with the cold war, our nuclear weapons are essential in this context. Conventional superiority alone is not sufficient. Looking at the only real world experience we have in deterring the use of chemical and biological by rogue leaders--the Desert Storm case--it appears that the threat of a nuclear response was a major factor in the Iraqi decision to forego the use of their weapons of mass destruction. An in-depth study of United States security policy in the 21st century, conducted last year by the National Defense University and Livermore National Laboratory, concluded that nuclear weapons would remain critical both to hedge against Russia and China, as well as to deter rogue states that will seek to challenge us in regions of vital interest. This same study concluded that: ``Retaining the safety, reliability, security, and performance of the nuclear weapons stockpile in the absence of underground nuclear testing is the highest-risk component of the U.S. strategy for sustaining deterrence.'' For over 40 years, testing was seen as essential to the credibility of our deterrent forces and our commitments to friends and allies. The CTBT, if ratified by the United States, would call into question the effectiveness and reliability of this essential component of our national security strategy. In the annual statement of U.S. National Strategy, President Clinton has affirmed the view of his predecessors for more than half a century--nuclear weapons are vital to the security interests of the United States. It is not surprising then that one of the safeguards offered by the White House to diminish the risk inherent in accepting a permanent ban on nuclear weapons testing through the Comprehensive Test Ban Treaty CTBT is to attempt to sustain the existing inventory of nuclear weapons through what is known as the Stockpile Stewardship Program, SSP. The aim of the SSP is to utilize the data from more than 1,000 U.S. atmospheric and underground nuclear tests legacy code combined with advanced diagnostic and experimental facilities now under development in the SSP to assess the aging properties of nuclear weapons. It is hoped that the SSP will enable U.S. nuclear weapon scientists and engineers to model and simulate nuclear phenomena with sufficient fidelity and reliability to permit judgements to be made about whether or not a particular weapon or class of weapons will continue to be safe and reliable. In short, whether or not U.S. nuclear weapons will remain a credible deterrent. The administration's approach is an extraordinarily risky one--far more so than can be discerned from administration statements on the subject. This is so because the way risks are multiplied in the program. First, the CTBT prevents the United States from using the technique for assuring the reliability of stockpile--the detonation of the nuclear weapon to be confident that the aging of the nuclear components have not diminished confidence in its safety and reliability. Second, the CTBT prevents the United States from testing new weapon designs--the approach we have taken over the past half century to make sure our nuclear weapon stockpile kept pace with what was required to deter. Third, the CTBT offers as an alternative to testing, the SSP. Let's examine each of these elements of risk in turn. First, the design of nuclear weapons is a highly empirical process. Vast computer networks and theoretical physicists notwithstanding, testing has been an indispensable dimension of nuclear weapon development, production, and deployment. This is so because the environment within a nuclear weapon is unlike anything in nature. Materials exposed to decades of nuclear radiation behave in ways scientists do not know how to predict. Gold, for example, corrodes in a nuclear environment--a property not evident in nature. We do know know what will happen over time to the nuclear components of a weapon and how the aging process will affect the weapon. This has been addressed in the past by detonating weapons after a fix has been installed in a weapon that appears to be adversely affected by age. Because there is no theoretical basis that has been validated through testing to certify weapon safety and reliability, testing has been indispensable. The United States ceased its nuclear weapon testing program in 1992, but had never undertaken an effort to ascertain whether or not it could model and simulate the aging properties of nuclear weapons with sufficient reliability to permit the certification of the weapons in the stockpile. Nuclear weapons now in the stockpile--eight types plus one additional type in reserve--means that we have concentrated our deterrent in relatively few weapon designs. In the mid-1980s, we had 32 types of nuclear weapons in the stockpile. The average age of the weapons in the stockpile is 15 years--more than has ever been the case in the past, and well beyond U.S. experience. We simply do not know what the long- term implications of aging are on nuclear weapons. We do know that there are consequences from the aging process, because problems resulting from aging have been identified in the past. However, as we were able to conduct underground tests, the aging process did not degrade the safety and reliability of the stockpile. If the CTBT is ratified, we may not have an opportunity to do this in the future because the process for utilizing the supreme national interest provisions of the treaty to withdraw are themselves an impediment to sustaining deterrence. Second, the CTBT will prevent the United States from testing new nuclear weapon designs should the need to sustain deterrence call for new designs. Many new designs were required during the cold war to sustain deterrence. Identifying some circumstances that could give rise to a requirement for new weapon designs is not difficult. The weapons retained in the U.S. inventory after the cold war are primarily designed to strike urban-industrial targets (reflecting the policy of mutual assured destruction) and hardened targets on or near the earth's surface. The change in the technology of underground construction has fundamentally changed the economics of locating military targets in deep underground locations. In Russia, for example, despite its severely depressed economic circumstances, has invested $6 billion since 1991 in a deep underground military facility in the southern end of the Ural Mountains. The underground facility at the site is located under nearly 1,000 feet of granite--one of scores of deep underground sites--that could not be held at risk with the current nuclear weapon stockpile. Similar underground facilities exist in other declared or undeclared nuclear weapon states. It is possible that some future President may decide that new weapon design(s) are needed to sustain deterrence. He will be prevented from doing so if the CTBT is ratified. Third, the alternative to testing, the SSP, is an extraordinarily risky approach to sustaining deterrence. The United States has not conducted a testing program to verify that the modeling and simulation of the existing stockpile or new designs can be maintained or implemented using the experimental and diagnostic facilities of the SSP. No testing has taken place since 1992, but the SSP will not be fully operational until 2010 or beyond. One of the most important of these facilities--the National Ignition Facility, NIF--has proven to be both a technical and cost challenge. Last month the Congress was confronted by a one-third jump in the cost of this program. The entire SSP--budgeted at $4.5 billion--is certainly underfunded, as the NIF experience demonstrates. For the SSP to be successful, all of its numerous experimental and diagnostic facilities have to work perfectly to assure that the safety and reliability of the stockpile can be certified indefinitely. It is one thing to take such a technical and financial risk in an environment where testing is unconstrained. It is quite another to bet on the enduring success of a program--the SSP--that has already been shown to have unforeseen cost, technical, and schedule difficulties. The extent of these difficulties has not yet even been ascertained by the executive branch--much less an independent determination by the Congress. The risks to the ability to sustain deterrence under the CTBT are simply too large for the Congress to accept. The CTBT should not be ratified. CTBT proponents claim that the treaty is an important tool in the fight against nuclear proliferation. This is simply inaccurate. A test ban will provide no obstacle to a proliferator who seeks a first-generation-or even a second-generation-nuclear weapon. One of the two bombs the United States dropped on Japan to end WWII was an untested design. South African built and deployed six nuclear weapons without testing the design. Pakistan obtained a workable design from China, and thus needed no nuclear tests of its own. Faced with these facts, treaty proponents often resort to the claim that the CTBT will establish an international norm against nuclear proliferation. Again, history teaches us differently. There is already an international norm against proliferation embodied in the Nuclear Nonproliferation Treaty--the NPT. Over 130 nations have signed the NPT and, by doing so, have forsworn nuclear weapons development. As an aside here, I guess we can say the CTBT is to get nations to promise not to test the weapons that they promised not to develop under the NPT. The international norm of nuclear nonproliferation-the one supposedly established by the NPTB was broken by Iraq, which tried to develop nuclear weapons clandestinely. And, the norm is violated even today by North Korea, which remains in noncompliance with the NPT. Two nations not party to the NPT, India and Pakistan, also broke the international norm. Other arms control norms are readily and repeatedly broken as well. There are too many examples to cite here today, but let me give you one. The United States forswore biological weapons and led the world in signing the Biological Weapons ban. The Soviet Union signed too, but secretly kept inventing and manufacturing ever more potent biological weapons. Other nations, including Iraq, have also made such weapons. The point here is that norms do nothing to prevent development of heinous weapons by nations that view it in their security interests to do so. They are driven by their own perceptions of threat, not by a desire to adhere to a norm established by the United States or the international community. Ironically, the CTBT might actually promote nuclear proliferation. I say this for two reasons. First, it my promote proliferation by damaging the U.S. nuclear umbrella. United States allies such as Japan, South Korea, Germany, and Italy have long depended on United States nuclear strength to provide them the ultimate protection. Indeed, the United States persuaded South Korea and Taiwan to give up their own nuclear weapons programs by promising them protection. U.S. nuclear testing has signaled to allies, and to potential enemies, that the United States nuclear arsenal is effective and that the United States is committed to using such weapons if absolutely necessary. Without nuclear testing, there is no question that United States confidence in the stockpile will decline. Our enemies and allies alike will read this silent signal as a local of commitment to maintaining-and using, if necessary-the nuclear deterrent. As U.S. confidence in the stockpile declines over time, it is likely that our allies confidence in the nuclear umbrella will similarly decline. This could head to allies reevaluating their own security needs. (If the U.S. umbrella appears insufficient, might they not consider developing their own nuclear deterrents? The second reason that I say that the CTBT may promote proliferation is that it will result in significantly increased interactions between the U.S. weapons design community and the international academic community. This could, and probably will, result in the transfer of weapons-relevant data. Let me explain. The U.S. stockpile stewardship program, the one intended to take the place of nuclear testing, relies on markedly increased collaboration between nuclear weapons specialists and the open scientific community. The program encourages open exchange of new nuclear research between the U.S. weapons laboratories and the international scientific community. The role that the stewardship program envisions for unclassified researchers extends far beyond peer review and the occasional preventatives meeting. Bit involves U.S. highly likely that these Occasional presentations meeting energy the quit involves Program, to participate in attempt to develop tool sot replace There will be five university research centers and a host of other researchers funded by 5 year grants totaling tens of millions of dollars. It is highly likely that these researchers in the unclassified world, working closely with nuclear weapons scientists on the stewardship program, will gain an improved understanding of nuclear explosives phenomena. And, of course, there will be no way to prevent the further dissemination this understanding. In summary, the CTBT will not further the cause of nuclear nonproliferation. Quite the opposite, it will likely result in promoting nuclear proliferation. The Comprehensive Test Ban Treaty submitted to this Senate by President Clinton is not verifiable. This means that, despite the vast array of expensive sensors and detection technology being established under the treaty, it will be possible for other nations to conduct militarily significant nuclear testing with little or no risk of detection. What is militarily significant nuclear testing? Our definitions of the term might vary, but I think we'd all agree that any nuclear test that gives a nation information to develop newer, more effective weaponry is militarily significant. In the case of the United States, nuclear tests with yields between 1,000 tons and 10,000 tons are generally large enough to provide ``proof'' data on new weaponry designs. Other nations might have weaponry that could be assessed at even lower yields. For the sake of argument, however, let's be conservative and assume that other nations would also need to conduct tests at a level above 1,000 tons to develop a new nuclear weapon design. The verification system of the CTBT is supposed to detect nuclear blasts above 1,000 tons, so it would seem at first glance that it will be likely that most cheaters would be caught. We need to look at the fine print, however. In reality, the CTBT system will be able to detect tests of 1,000 tons or more if they are nonevasive. This means that the cheater will be caught only if he does not try to hide his nuclear test. But, what if he does want to hide it? What if he conducts his test evasively? It is a very simple task for Russia, China, or others to hide their nuclear tests. One of the best known means of evasion is detonating the nuclear device in a cavity such as a salt dome or a room mined below ground. This technique called ``decoupling'' reduces the noise, or the seismic signal, of the nuclear detonation. The change in the signal of a decoupled test is so significant--it can be by as much as a factor of 70--that it will be impossible for any known technology to detect it. For example, a 1,000-ton evasive test would have a signal of a 14-ton non-evasive test. This puts the signal of the illicit test well below the threshold of detection. Decoupling is a well-known technique and is technologically simple to achieve. In fact, it is quite possible that Russia and China have continued to conduct nuclear testing during the past 7 years, while the United States has refrained from doing so. They would have been able to test, without our knowing, by decoupling. There are also other means of cheating that can circumvent verification. One is open-ocean testing. A nation could put a device on a small seaborne platform, tow it to the middle of the ocean, and detonate it anonymously. It would be virtually impossible to attribute the test to the cheater. If the CTBT were not going to affect U.S. capabilities, it would not be important whether the treaty is verifiable or not. The fact is, however, the CTBT will freeze the U.S. nuclear weapons program and will make it impossible to assess with high confidence whether the current stockpile is reliable. And, because the treaty is not verifiable, it will not effectively constrain other nations in the same way. That means that they will ultimately be able to gain advantage. Let me stress here that my assessment is not based on partisan opinions. The non-verifiability of the CTBT is well-known and has been affirmed by the U.S. intelligence community. We have no business signing up to an unverifiable treaty, particularly one that could so adversely affect the strength and effectiveness of our nuclear deterrent. Mr. President, seismology has come a long way in the past half- century, but it still measures only earth vibrations, not Treaty compliance. Let's save time by stipulating that earth vibrations caused by most nuclear explosions will be detected by the CTBT's International Monitoring System (IMS). Then we can focus discussion on the political process by which detection of ``events'' lead to identification of nuclear tests, and by which identification of tests leads to verification of noncompliance with a Treaty. In combination, the United States and IMS will reliably detect thousands of seismic events every year. But that does not mean that either system, independently or in combination, can reliably identify low yield nuclear explosions. Seismic networks are scientific tools that must be calibrated against real world occurrences of what they measure. Once seismologists know that a given seismic signal was a nuclear test of a given yield at a given location, their network is calibrated for nuclear explosions of comparable magnitude at that location. For events of different magnitudes and/or in different locations, seismic signal identification is subjective. Like a few dozen CPAs interpreting the same IRS rule, each event will be interpreted differently depending on who is making the judgment and who their client is. This is particularly true, of course, for smaller events and those that occur in parts of the world-- where nuclear explosions have not previously been recorded. The fact of such uncertainty is not in dispute. No one can specify now, or in the foreseeable future, how large a nuclear test must be before it can be reliably identified as a nuclear test by the IMS. The best case would involve fully decoupled tests in locations where seismologists know both the precise magnitude of previous tests and the consequent seismic reading generated by those tests. The worst case would involve clandestine tests in uncalibrated regions that are decoupled. Even in best case circumstances no one disputes the uncertainty of identifying low yield nuclear events--no matter where they are conducted. Some believe these uncertainties extend to events of several kilotons, fully decoupled. In any case, no improvements of the United States and IMS systems that can be expected in the foreseeable future will alter those judgments. Mr. President, that is why CTBT proponents stress seismic capabilities in terms of detection capability, which, unlike identification capabilities, can be calculated. But detection relates exclusively to the seismic network's ability to sense events, and again I stress it is identification, not detection that underpins verification. A violator can decrease even a detected seismic magnitude by ``decoupling''--that is, conducting a nuclear test in an underground cavity that muffles an explosion. Treaty proponents will argue that construction of such cavities is a nontrivial engineering task. It is hard to measure such difficulty because our experience in decoupling is more limited than, say, Russia's. But to decouple a 10-kiloton explosion so that it cannot be identified requires a cavity that countries of greatest concern are certainly capable of constructing. To help resolve such uncertainties, the CTBT includes the right to conduct on-site inspections (OSI). But decisions to exercise that right will be based on the level of voting countries' confidence in events identified by the IMS seismic network. Thirty current members of the rotating 51-member CTBT Executive Council must agree that an OSI should be conducted. It is clear from the negotiating record that some countries, including China, would view a request for OSI as a hostile act. The fact, coupled with identification uncertainties for low yield events, makes it very unlikely that the Executive Council will ever get the votes needed to request OSI for lower yield tests. For larger yields, in calibrated regions, where event-identification would be less ambiguous, OSI requests would be more likely to get the required support, but hardly needed to identify the event. For seismic events that could be low yield tests, the precise location of that event will be very uncertain, and the area that would need to be examined with OSI would be prohibitively large. Impression in locating an event, coupled with the inspected state's rights under the CTBT's ``managed access'' principle, assures that an approved OSI will never conclusively identify an event. Past experience has shown that to achieve consensus--even within the United States--on the identification of low yield events will be very difficult. Past experience has also shown that other countries--most of whom do not have the detection resources the United States has--will weigh OSI decisions against the political reality that target state will perceive OSI as a hostile action. The bottom line, Mr. President, is that OSI approval will be most likely in cases where they are needed least, least likely in cases where they are needed most, and of marginal utility when they are conducted. Even if a detected seismic event is categorized as a nuclear test, it still has to be attributed to a CTBT party. What if it takes place in international waters? What if a suspected government feigns surprise and attributes the undertaking to a non-state actor, known or unknown, acting within its borders? What if the precise location cannot be specified and the suspect state has sensitive facilities in the area surrounding the event's apparent epicenter? In short, the IMS is designed to support a bulletproof CTBT regime. It will generate lots of suspecting, very little detecting, still less identifying, little or no attributing, and a virtual absence a verified noncompliance. Mr. President, none of this would matter except that the United States will never conclude that the accumulated uncertainties are sufficient to justify our abrogation of the treaty. Anti-nuclear interests, knowing full well that a foreign nuclear test has occurred, will always be able to obscure the evidence or moderate the U.S. response. That is true already, of course, but Treaties reside in a rarefield political and legal atmosphere in the U.S. from which abrogation is never taken lightly. These are the weapons the United States relied on defeat two monstrous twentieth century tyrannies and to deter threats for over a half-century. I do not wish to subordinate their deterrent power, their safety, their modernization, or their reliability to the vagaries of this detection-identification-verification conundrum. The IMS system was not, and could not have been, designed to verify clandestine tests. Thus, to whatever extent our ratification of the CTBT relies on the integrity of verification it should be soundly defeated. CTBT proponents are fond of saying that this treaty is the longest sought, hardest fought arms control agreement. They point out that negotiation of a nuclear test ban first began with President Eisenhower, and continued on-and-off through the administrations of several presidents. In truth, the Clinton CTBT is very different from the test bans sought by past presidents. An old name has been put on a new treaty. We need only look at history to see that what President Clinton's administration negotiated is not at all consistent with the treaty sought by his predecessors. When President Eisenhower undertook negotiations for a test ban, he purposefully excluded low-yield nuclear testing for at least two reasons. First, he knew that the United States would need to conduct such low-level tests to assure that the U.S. stockpile was as safe and reliable as possible. Second, he knew that such testing is readily concealed, so banning them would not be verifiable. And, like Eisenhower, subsequent U.S. Presidents held fast to the position that any test ban must allow for low-yield testing. President Clinton, separating himself from past presidents, declared that the United States would undertake a zero-yield nuclear test ban. He made this decision against the advice of the majority of his cabinet, including the Secretaries of Defense and State, and against the advice of the leaders of the national laboratories. That is, President Clinton unilaterally determined that the U.S. would deny itself the ability to conduct the low-level testing necessary to assure us that the weapons in our stockpile are functional and usable. President Clinton's decision is particularly astounding when you realize that other nations will not be similarly constrained. They will be able to test low-yield devices. Why? Because the CTBT does not define what is meant by a nuclear test. In other words, the treaty does not say that it is a zero-yield ban. That is something that President Clinton imposed on the United States as its own interpretation of the treaty. Thus, when Russia conducts low-yield tests to assure reliability of its own arsenal, it will not be technically in violation of the CTBT. A second reason that Clinton's CTBT is quite different from the test bans sought by past presidents is duration. Clinton's treaty is of unlimited duration. All previous presidents understood that it was very important to limit the length of the treaty to a few years, thus requiring renewal periodically. This would place the burden upon those who want a test ban to prove that it is in the security interests of the United States to continue the ban. Instead, Clinton's treaty does the opposite: it makes getting out of the treaty very difficult. And, as we have seen from the ABM Treaty, it is politically very difficult to leave a treaty, even when it is no longer relevant or in your security interests. A third major difference that makes Clinton's CTBT different from past test bans is its lack of verifiability. All past presidents stated that they would only support a treaty that is effectively verifiable. Verifiability may not seem to be a very significant issue, but it is indeed terribly important. We all know that the United States will adhere scrupulously to the CTBT is we in the Senate give our advice and consent to ratification. Other nations, however, have repeatedly demonstrated that they are willing to violate their arms control commitments. North Korea is currently in violation of the Nuclear Nonproliferation Treaty, under which it promised not to pursue nuclear weapons. Russia has violated a host of arms agreements, including the ban on production of biological weapons. If the United States abides by a test ban, whereas other nations are able to continue testing undetected, the United States will ultimately be disadvantaged. Others will be able to assure confidence in their stockpiles, but the United States will not. Others will be able to continue to develop newer, more modern nuclear weapons, whereas the U.S. program will be frozen. Others will be able to test any fixes to problems that develop with their stockpiles, whereas the United States will not be able to do so. This treaty is not well-thought-out and contains provisions that will ultimately harm the U.S. nuclear deterrent. Furthermore, the zero-yield interpretation by President Clinton is unacceptable. We should reject this treaty in the interests of our own security. CTBT proponents assert that the DOE's Science Based Stockpile Stewardship Program (SSP) can maintain the safety and reliability of the nation's nuclear weapon stockpile without nuclear testing. I emphasize that this is an assertion, an unproven, undemonstrated assertion. Dr. Seigfried Hecker, as Director of Los Alamos National Laboratory in 1997, in response to a question from Senator Kyl, has stated ``. . . we could not guarantee the safety and reliability of the nuclear stockpile indefinitely without nuclear testing.'' By agreeing to ratification of the CTBT the Senate would accept abandoning nuclear testing, the only proven method for assuring the safety and reliability of our nuclear deterrent, to embrace the unproven, unvalidated SSP. Nuclear deterrence is a vital element of our national security structure. President Clinton, in sending us this treaty reaffirmed that he views the maintenance of a safe and reliable nuclear stockpile to be a supreme national interest of the United States. If this is the case, how we can accept an unproven SSP as the basis for our confidence in the nuclear stockpile? If SSP were an established capability, and a not a set of research programs, most of which will not reach fruition for years, and the predictions of SSP had been thoroughly compared with the results of nuclear tests specifically designed to validate the new SSP, with positive results, then and only then could I consider abandoning nuclear testing in favor of SSP. Can you imagine any reputable company abandoning one accounting systems for another without making sure that the new system's results agreed with the old? Can you imagine any reputable laboratory abandoning one calibration tool for another before ensuring that the new tool agreed with the old tool? But this is what we are being asked to do if we give our advice and consent to the CTBT. In an area where the supreme national interest of the United States is at stake we are being asked to endorse SSP as a replacement for nuclear testing without knowing if SSP works. Clearly the sensible course of action is to pursue SSP but calibrate its predictions, validate its new computer models, step-by-step, year-by-year by direct comparison with the results of nuclear tests specifically designed to test SSP. Then, if the SSP is shown to be a reliable replacement for nuclear testing, we could consider whether we would wish to be a party to a treaty banning nuclear testing. We must retain the ability to conduct underground nuclear tests to ensure the reliability and safety of our existing weapons and to establish whether SSP works. I would like to remind my colleagues that this body, in 1987, required the Department of Energy to design a program very like what I have described, but even more encompassing. The Senate Armed Services Committee language for the fiscal year 1998 authorization bill required that DOE prepare a report on a program which would prepare the country for further limitations on nuclear testing beyond the 150 kiloton yield cap then in place. The committee recognized that the sophisticated weapons in the U.S. inventory might not be sustainable under further test limitations and required DOE to describe a program that would ``. . . prepare the stockpile to be less susceptible to unreliability during long periods of substantially limited testing.'' DOE was also required to ``. . . describe ways in which existing and/or new types of calculations, non-nuclear testing, and permissible but infrequent low yield nuclear testing might be used to move toward these objectives.'' This latter requirement might be viewed as the progenitor of SSP. DOE responded to this requirement by designing a test-ban readiness program which anticipated a ten year, ten nuclear test per year program which would address the objectives required by the Senate, which included the development and validation, by comparison with nuclear tests, of new calculational tools and non-nuclear testing facilities. I must hasten to add that this program described by DOE was never fully funded because throughout the Reagan and Bush administrations further limitations on nuclear testing were not viewed as necessary or desirable. A CTBT was stated to be a long term goal. The stark differences between the Senate's requirement and the DOE response and the path taken by the Clinton administration could not be more stark. There was no period of preparation for this CTBT before us. The DOE was not instructed to implement the design and testing of robust replacement warheads. The DOE was not funded to procure and validate new calculational and non-nuclear testing facilities. Instead, nuclear testing stopped without warning. Even the few nuclear tests that might have allowed some preparation were denied. Dr. Hecker wrote to Senator Kyl, ``We favored conducting such tests with the objective of preparing us better for a CTBT.'' However all tests were ruled out by the Clinton administration for policy reasons. This was years before the President signed the CTBT. Nuclear weapon safety has always been a paramount concern of the United States. Throughout the history of its nuclear weapons program the United States has made every effort to ensure that even in the most violent of accident situations there would be the minimum chance of a nuclear explosion or radioactive contamination. The adoption of the CTBT will abandon this important commitment. I am very concerned that a CTBT will stand in the way of improving the safety of U.S. nuclear weapons. All experts agree that nuclear weapon safety cannot be improved without the ability to conduct nuclear tests to confirm that the weapons, once new safety features are incorporated, are reliable. The CTBT makes pointless any attempts to invent new, improved safety feature because they could never be adopted without nuclear testing. Of even greater concern is that the CTBT even eliminates the possibility of improving the safety of current weapons through the incorporation of existing, well understood safety features. Unfortunately, few people know that many of our current weapons do not contain all the safety features that already have been invented by the DOE Laboratories. A White House Backgrounder issued July 3, 1993, in conjunction with President Clinton's decision to stop all u.S. testing, acknowledges ``Additional nuclear tests could help us prepare for a CTBT and provide some additional improvements in safety and reliability.'' President Clinton thought it was more important not to undercut his nonproliferation goals! I am less ready to ignore the safety of the American people. If we accept the CTBT, we will be accepting a stockpile of nuclear weapons that is less safe than it could be. I, for one, want no part in settling for less than the best safety that can be had. Should a U.S. nuclear weapon become in evolved in a violent accident which results in deaths and damage due to the spread of radioactive plutonium, I do not want to be in the position of explaining how I, by consenting to ratification of the CTBT, prevented the incorporation of safety measures that would have prevented these tragic consequences. CTBT proponents will cite certifications of safety by the laboratory directors and the administration that the stockpile is safe. They apparently believe that procedures will make up for the lack of safety features. The Chernobyl nuclear reactor accident provides us with an example of what happens when procedures are counted on to ensure safety rather than putting safety mechanisms in place. Chernobly is not the only example where counting on human operators to follow procedure for ensuring safety has failed. It had been DOE's objective to install safety features which were inherent to guarantee, to the maximum extent possible, that neither through accident nor malevolent intent could human actions cause unacceptable contamination. Has this policy been abandoned because it is inconvenient to an administration determined to have a CTBT at any cost? We have spent considerable money to incorporate advanced safety features in some existing weapons. Were we wasting our money? Is there some reason why it is OK to have some weapons less safe than others? I am not challenging that each weapon may be as safe as it could have been made at the time it was built. But safety standards change and now we may have to live without current weapon systems for a very long time. The American people deserve the safest weapons possible. We have gone from expecting seat belts, to expecting antilocking brakes and air bags in our automobiles. We know we could have insensitive high explosive and fire-resistant pits and enhanced nuclear detonation safety devices in every stockpile weapon. But we do not! We know each additional safety features decreases the probability of catastrophic results from an accident involving a nuclear weapon. We have no business entering into a CTBT until every weapon in our inventory is as safe as we know how to make it. I cannot justify a lesser standard and I hope you join me in this view and not give advice and consent to the ratification of the CTBT. Mr. President, there are numerous reasons to oppose this treaty, many of which have been discussed here already. But I would like to focus on one feature of this agreement that is, in my view, sufficient reason by itself for rejecting ratification, and that is the treaty's duration. This is an agreement of unlimited duration. That means that, if ratified, the United States will be committing itself forever not to conduct another nuclear test. Think of that--forever. Are we so confident today that we will never again need nuclear testing--so certain that we are willing to deprive all future commanders-in-chief, all future military leaders, all future Congresses, of the one means that can actually prove the reliability of our nuclear deterrent? Now, proponents of this treaty will say that this is not the case-- that this commitment is not forever--because the treaty allows for withdrawal if our national interest requires it. And proponents of the treaty promise that if we reach a point where the safety and reliability of our nuclear deterrent cannot be guaranteed without testing, well then all we need do is exercise our right to withdraw and resume testing. This so-called ``supreme national interest'' clause, along with Safeguard F, in which President Clinton gives us his solemn word that he will consider a resumption of testing if our deterrent cannot be certified, is supposed to reassure us. But the fact, Mr. President, is that this reassurance is a hollow promise, and supporters of the treaty know it. The fact is that if the critical moment arrives and there is irrefutable evidence that we must conduct nuclear testing to ensure our deterrent is safe, reliable, and credible, those same treaty supporters will be shouting from the highest mountain that the very act of withdrawing from this treaty would be too provocative to ever be justified, that no narrow security need of the United States could ever override the solemn commitment we made to the world in agreeing to be bound by this treaty. And if you don't believe that will happen, Mr. President, you need only look at our current difficulties with the 1972 ABM Treaty. It provides a chilling glimpse of our nuclear future, should we ratify this ill-conceived test ban. Like the Comprehensive Test Ban Treaty, the ABM Treaty is of unlimited duration. It, too, includes a provision allowing the United States to withdraw if our national interests so demand. It's difficult to imagine a situation in which national security interests and treaty obligations are more clearly mismatched than with the ABM Treaty today, but its supporters insist that withdrawal is not just ill-advised but actually unthinkable. And the voices wailing loudest about changing this ossified agreement are the same ones urging us today to entangle ourselves in another treaty of unlimited duration. Think of the ways in which the ABM Treaty is mismatched with our modern security needs. The treaty was conceived in a strategic context utterly unlike today's, a bipolar world in which two superpowers were engaged in both global rivalry and an accompanying buildup in strategic nuclear forces. Today, one of those superpowers no longer exists, and what remains of it struggles to secure its own borders against poorly armed militants. The arms race that supposedly justified the ABM Treaty's perverse deification of vulnerability has not just halted, it's reversed, and no thanks to arms control. Today Russian nuclear forces are plummeting due not to the START II agreement--which Russia has refused to ratify for nearly 7 years--but to economic constraints and the end of the cold war. In fact, their forces are falling far faster than treaties can keep up; arms control isn't controlling anything--economic and strategic considerations are. Similar forces have led the United States to conclude that its forces can also be reduced. Thus, despite a strategic environment completely different from the one that gave birth to the ABM Treaty, its supporters stubbornly insist that we must remain a party to it. In 1972, only the Soviet Union had the capability to target the United States with long-range ballistic missiles. Today, numerous rogue states are diligently working to acquire long-range missiles with which to coerce the United States or deter it from acting in its interests, and these weapons are so attractive precisely because we have no defense against them--indeed, we are legally prohibited from defending against them by the ABM Treaty. Technologically, too, the ABM Treaty is obsolete. The kinetic kill vehicle that destroyed an ICBM high over the Pacific Ocean on October 2 was undreamed of in 1972. So was the idea of a 747 equipped with a missile killing laser, which is under construction now in Washington state, or space-based tracking satellites like SBIRS-Low, so precise that they may make traditional ground-based radars superfluous in missile defense. Yet this ABM Treaty, negotiated three decades ago, stands in the way of many of these technological innovations that could provide the United States with the protection it needs against the world's new threats. These new threats have led to a consensus that the United States must deploy a National Missile Defense system, and a recognition that we are behind the curve in deploying one. The National Missile Defense Act, calling for deployment of such a system as soon as technologically feasible, passed this body by a vote of 97-3, with similar support in the House. Just as obvious as the need for this capability is the fact that the ABM Treaty prohibits us from deploying it. Clearly, the ABM Treaty must be amended or jettisoned; the Russians have so far refused to consider amending it so withdrawal is the obvious course of action if United States security interests are to be served. But listen to the hue and cry at even the mention of such an option. From Russia to China to France and even to here on the floor of the United States Senate, we have heard the cry that the United States cannot withdraw from the ABM Treaty because it has become too important to the world community. Those who see arms control as an end in itself inveigh against even the consideration of withdrawal, claiming passionately that the United States owes it to the world to remain vulnerable to missile attack. Our participation in this treaty transcends narrow U.S. security interests, they claim; we have a higher obligation to the international community. After all, if the United States is protected from attack, won't that just encourage others to build more missiles in order to retain the ability to coerce us, thus threatening the great god of strategic stability? That phrase, translated, means that citizens of the United States must be vulnerable to incineration or attack by biological weapons so that other nations in this world may do as they please. Even though the ABM Treaty is hopelessly outdated and prevents the United States from defending its citizens against the new threats of the 21st century, supporters of arms control insist that withdrawal is unthinkable. Its very existence is too important to be overridden by the mere security interests of the United States. Absurd as such a proposition sounds, it is the current policy of this administration and it is supported by the very same voices who now urge us to ratify this comprehensive test ban. The Clinton administration has been reluctantly forced by the Congress into taking serious action on missile defenses. It admits that the system it needs to meet our security requirements cannot be deployed under the ABM Treaty. Yet, so powerful are the voices calling on the United States to subjugate its own security interests to arms control that the administration is proposing changes to the ABM Treaty that--by its own admission--will not allow a missile defense system that will meet our requirements. It has declared what must be done as ``too hard to do'' and intends to leave the mess it has created for another administration to clean up. All because arms control becomes an end in itself. That sorry state of affairs, Mr. President, is where we will end up if the Senate consents to ratification of the Comprehensive Test Ban Treaty. Those treaty supporters who are saying now, ``don't worry, there's an escape clause'' will be the same ones who, 5 or 10 years from now--when there's a problem with our stockpile and the National Ignition Facility is still not finished and we find out that we overestimated our ability to simulate the workings of a nuclear weapon--will be saying we dare not withdraw from this treaty because we owe a higher debt to the international community. Mr. President, I don't represent the international community, I represent the people of my state. Our decision here must serve the best interests of the United States and its citizens. Our experience with the ABM Treaty is a perfect example of how arms control agreements assume an importance well beyond their contribution to the security of our nation. The Comprehensive Test Ban Treaty's unlimited duration is a virtual guarantee that this agreement will prevent us from conducting nuclear testing long past the point at which we decide such testing is necessary, should we so decide. As our ABM experience shows, we should take no comfort from the presence of a so-called ``supreme national interest'' clause. I urge the defeat of this treaty. Mr. President, the CTBT is nothing less than an ill-disguised attempt to unilaterally disarm the U.S. nuclear arsenal. We have repeatedly confirmed the need for nuclear weapons in the U.S. defense force posture. According to this administration's Secretary of Defense, ``nuclear forces are an essential element of U.S. security that serve as a hedge against an uncertain future and as a guarantee of U.S. commitments to allies.'' Most of us recognize this as a necessary, but awful, responsibility. Unfortunately, the CTBT actively undermines the Secretary of Defense's stated rationale for the U.S. nuclear arsenal. For nuclear weapons to serve as a hedge against an uncertain future, they must be relevant to the threats we may face. As Iraq demonstrated during the gulf war, that threat is often a rogue regime armed with weapons of mass destruction. Hopefully, the threat of nuclear retaliation will deter a rogue regime from using WMD against United States forces and allies in the theater, as it did in the Iraqi case. However, some rogue regimes may not be moved by such concerns. Would North Korea, which appears otherwise content to let its people starve, balk at the prospect of United States nuclear retaliation/ and for that matter, is a United States threat to kill hundreds of thousands of oppressed North Korean civilian the proper response to North Korean WMD use? Is it a proportionate, morally acceptable threat to make? If it is not a threat we would carry out, how credible can it be? The answer to these questions lies in making sure that the U.S. nuclear arsenal is and remains relevant to the sorts of threats we will encounter in the ``uncertain future.'' Making the U.S. nuclear arsenal relevant to a world of rogue actors with dug-in, hardened shelters and WMD capabilities will likely require new weapons designs. In addition to improving the safety and reliability of our arsenal, new weapons designs tailoring explosive power to the threat will be crucial. For example, in some settings, biological weapons can be even more deadly than nuclear weapons. By releasing the agent into the atmosphere, a conventional attack on a biological weapons storage facility might cause more innocent deaths than it averted. It is possible that only a nuclear weapon is capable of assuring the destruction of a biological agent in some circumstances. The U.S. development of the B61-11 bunker buster nuclear weapon is evidence that, absent the political pressure for arms control, the U.S. arsenal needs these capabilities. The CTBT will stop the United States from developing and deploying fourth generation nuclear weapons. Further, it will slowly degrade and destroy the nuclear weapons design infrastructure needed to produce new weapons designs. Thus any promise to withdraw from the CTBT in time of need becomes irrelevant; the capabilities we need won't be there. Without these new designs, nuclear weapons will ultimately cease to be a credible option for U.S. decisionmakers in all but a few very specific cases. Denying the United States the nuclear option is the true intent of the CTBT. Do other countries recognize the utility of new weapons designs? Certainly. Russia increasingly relies on its nuclear weapons for national security because its conventional forces are failing. Russia is almost certainly interested in developing what one Russian senior academic identified as ``ultralow-yield nuclear weapons with little effect on the environment.'' Our ability to detect and identify these sorts of test, which may resemble conventional explosions or small seismic events, with any degree of certainty is limited, and the cost of evading detection through decoupled underground tests, masking chemical explosions, etc., is not prohibitive. While the CTBT's proposed International Monitoring System (IMS) will add to the capabilities available through U.S. national technical means (NTM), it will still not provide definitive answers. While less sophisticated than the Russian program, China has demonstrated that modernized and new weapons designs are on its agenda. Its aggressive intelligence-gathering operation aimed at the U.S. nuclear weapons complex should be clear evidence of that. China's willingness to freeze its nuclear modernization program simply to comply with a treaty should also be suspect--China has repeatedly demonstrated that it is willing to act contrary to its international commitments in areas of keen United States interest like the Missile Technology Control Regime (MTCR). ``Norms'' and diplomatic peer pressure will not dissuade China from nuclear testing. Based on these observations, what the CTBT will create is a frozen, degrading U.S. nuclear weapons program, improving Russian and Chinese arsenals, and a host of rogue regimes increasingly aware that the United States nuclear threat is deficient. Let me conclude my remarks. I think as we close this debate, it is important to reflect for a moment on what the constitutional responsibilities of the Senate are. In binding the American people to international treaties, the Senate is a coequal partner with the President of the United States, whose people negotiate treaties which he signs and then sends to the Senate for its advice and consent. It would help if he asked the Senate's advice before he requested our consent, but in this particular case his negotiators tried in certain circumstances to gain provisions in this treaty which eventually they concluded they could not get, and as a result, negotiated what Senator Lugar of this body has called a treaty not of the same caliber as previous arms control treaties; a treaty that is flawed in a variety of ways he pointed out, including the fact it is not verifiable and it lacks enforceability. My view is that the Senate can fulfill its constitutional responsibility not by being a rubber stamp to the administration but by in effect being quality control by sending a message that the U.S. Government, embodied in the Senate, will insist on certain minimum standards in treaties that will bind the American people. Particularly with respect to our national security, when we are talking about arms control, we will insist on those standards regardless of world opinion or what the lowest common denominator of nations may request. This administration had the opportunity to negotiate a treaty of less than permanent duration. They originally tried a 10-year, opt-out provision but failed in that. They originally, at the request of the Joint Chiefs of Staff, were trying not to agree to a zero yield but to permit hydronuclear tests. But eventually they agreed to a zero yield. There were requests for better monitoring sites around the world, but our negotiators gave up on that as well. My point is, in rejecting this treaty tonight the Senate will be strengthening the hand of our future negotiators who, in talking to their counterparts in the world, will be able to say the Senate is going to insist on certain minimum standards: That it be verifiable, it be enforceable, that it take the U.S. security interests seriously, and unless that is done we cannot possibly agree to these terms. By rejecting this treaty this evening, I believe we will be sending a very strong message that as the leader of the world, the United States will insist on certain minimal standards to the treaties. Our negotiators in the future will be better able to negotiate the provisions. And in the future, the Senate will be in a position to ratify a treaty rather than having to reject what is clearly an inferior treaty. I urge my colleagues to reject this treaty.

Mr. KYL. The date of the letter is today, October 13, 1999, on the eve of our vote. Mr. President, let me conclude by thanking all of the people who have testified on both sides of this, especially Dr. James Schlesinger, Jim Woolsey, and people who came early to the Senate and helped inform those of us who were eager to learn what we needed to know about this. I am especially grateful, as I said, to Dr. Schlesinger for his willingness to do that, as well as to testify before the committee. I also thank Senator John Warner and Senator Jesse Helms, both of whom have spent a great deal of time conducting extremely informative hearings. I also thank Senator Joe Biden from Delaware, who has conducted himself very well on his side of the debate. I reserve any additional time.

Mr. KYL

Mr. KYL. I wonder if I might prevail on the courtesy of the Senator for 30 seconds.

Mr. KYL. The Senator asked a question which I think deserves an answer: Name one other treaty that had less time or more time than this. Here are the treaties: The Chemical Weapons Convention had 18 hours allotted for it.

Mr. KYL. That includes amendments.

Mr. KYL. If I could complete my answer to the Senator, which is that this treaty, pursuant to a request by the minority, had 14 hours associated with it, plus 4 hours per amendment, if there were amendments offered. There was an amendment offered on the Democratic side. The Democratic side used 2 hours allotted to them for that. The Conventional Forces in Europe Treaty had 6 hours, compared to 14 for the CTBT. The START Treaty had 9\1/2\ hours, about 6 hours less. The START II Treaty had 6 hours, and the CFE Flank Agreement, 2 hours. So every one of these treaties ended up having less time than the CTBT allotted for debate on the floor. All of last week was consumed by hearings in the Intelligence Committee, the Foreign Relations Committee, and the Senate Armed Services Committee; I don't know how many hours total. Prior to that time, the Government Operations Committee had three separate hearings. That is the specific answer to the Senator's question.

Mr. KYL

Mr. KYL. Mr. President, I rise to discuss a matter that will severely affect milk producers and processors in my state of Arizona and impede their ability to compete effectively in the state of Nevada. Under the Secretary's final rule, Arizona and Clark County, Nevada, make up one of the 11 consolidated Federal Milk Marketing Order Areas. During consideration of the Agriculture Appropriations bill, a provision was agreed to in the Senate by voice vote that attempted to remove Clark County, Nevada from this proposed order. I say attempted because the drafting of this language was fatally flawed. It would not have achieved its intended goal of allowing Nevada to remove itself from the system. Of course, the Nevada Senators realized this mistake and moved to amend the language in conference. I notified the committee, both in writing and orally, that I objected to any attempt to amend or modify the Senate-passed language. Unfortunately, the language change sought by the Nevada Senators was approved, and is now found in Section 760 of the Agriculture Appropriations bill of FY 2000. Section 760 creates, for the first time in nearly 75 years of federal milk-price regulation, a category of milk handler which is statutorily exempt from milk-price regulation. Anderson Dairy--the sole processor in Clark County--will gain a tremendous competitive advantage from this exemption at the expense of the Arizona dairy industry. Allowing Anderson to be removed from the Arizona/Nevada order will make it the only milk processor with sales in Clark County that enjoys a regulatory exemption. But its competitors--such as the Arizona processors--will continue to be regulated on all Clark County sales, which make up approximately 20 percent of their market. In other words, Anderson will be able to price its milk well below that of the Arizona processors who remain subject to the pricing structure of the milk-order system. Moreover, this statutory exemption will extend to Anderson Dairy sales outside of Clark County. Anderson Dairy would, therefore, enjoy a commercial advantage in its sales in Arizona while its competitors would continue to be regulated on all such sales. A good argument can be made in support of a milk industry that is free from pricing regulations; however, that is not the case today. Competitive equity has been the foundation of Federal Milk Orders for over one-half century. Under 7 U.S.C. 608(c)(5)(A), handlers are subject to the same uniform classified prices as their competitors, and under Sec. 608(c)(5)(B)(ii), revenue from handlers is pooled and blended so that producers may benefit from ``uniform prices'' irrespective of handler use of milk. Section 760 of the FY 2000 Agriculture Appropriations bill strikes at the heart of each component of regulatory equity by exempting the Clark County handler from the uniform price and economic standards applicable to competitors within the order, and by excluding from the producer- revenue pool all revenue from milk sales to the plant. For the plant operators in Arizona who continue to operate under price regulation, competing against an exempt plant such as Anderson is like fencing with your sword arm tied behind your back. Anderson can exploit its commercial advantage by expanding sales to current or prospective customers of nonexempt handlers. Such expansion would, in the end, severely harm Arizona producers. Mr. President, legislative exemption for Clark County plants should greatly enhance Anderson's asset value for acquisition purposes. Several national and international dairy companies have aggressively expanded their operations in the United States during the past few years. These include Dean, Suiza, and Parmalat. A price-exempt plant in the nation's fastest growing major metropolitan area would be very attractive to any expanding dairy enterprise. Should this occur, the producers and processors in Arizona would be negatively impacted. Having one state subject to the pricing structure of the milk-order system and another, contiguous state free to set its own price creates an uneven playing field. When Anderson is granted the right of removal from a system created to maintain stability and equity within that region, we have effectively undermined the intent of that system. Some 56 years ago, U.S. Appellate Judge Frank lamented that ``the domestication of milk has not been accompanied by a successful domestication of some of the meaner impulses in all those engaged in the milk industry.'' Queensboro v. Wickard, 137 F. 2d 969 (1943). Regional preferences and exemptions will only fuel these cynical impulses. I hope we can find a way to rectify this egregious situation and maintain a level playing field for the Arizona milk industry.

Mr. KYL

Mr. KYL. Let me quote three or four lines from it. He said: If we are to put our faith in a program other than testing to ensure the safety and reliability of our nuclear deterrent and thus our security, we must have complete faith in its efficacy. The Stockpile Stewardship Program falls well short of that standard. . . . At present, I am not convinced the Stockpile Stewardship Program will permit our experts to maintain a credible deterrent in the absence of testing. He goes on the say: Unfortunately, the CTBT's verification regime will not be up to that task even if it is ever fully deployed. He concludes his statement with this paragraph: The Senate is being asked to rely on an unfinished and unproven Stockpile Stewardship Program. This program might meet our needs in the future, but as yet, it is not close to doing so. The treaty is flawed with an ineffective verification regime and a practically nonexistent enforcement process. For these reasons, I will vote against ratification of the

Mr. KYL. I yield to Senator Biden and then have a unanimous consent request.

Mr. KYL. Madam President, I ask unanimous consent to print in the Record, at a cost of $3,228.00, a series of decision briefs and newspaper articles on the subject of the test ban treaty.