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Mr. LEVIN. Mr. President, when we debated the national missile defense and the antiballistic missile language in the defense authorization bill, a number of us felt that the bill was severely flawed in a number of ways.

First, we argued that the provisions in the bill would seriously damage our relationship with Russia by stating that we will deploy a national missile defense system. Such a statement of commitment to deploy would violate our treaty with the Russians, whi ch says that neither party will deploy a multiple site system.

Our good friend from Virginia is, of course, right. The Antiballistic Missile Treaty did not cover theater missiles or short-range missiles. The missiles which are covered by this treaty are the longer-range missiles. But we have a treaty, and that treaty has been an important part of a stable relationship when we had a cold war, and the preservation of our word now is particularly important when we are attempting to have a normal relationship with Russia.

The language in the underlying bill which said that it was our decision to deploy a system which would violate a treaty with Russia was the most troublesome of the language in this bill.

Those of us who opposed that language and sought to strike it urged on the Senate that this was a reckless course of action which could jeopardize the nuclear weapons reductions now taking place in the START I Treaty, and would also jeopardize the ratific ation of the START II Treaty. Those treaties are going to eliminate thousands of Russian nuclear warheads. Those treaties are going to reduce the number of Russia's warheads to 3,000, instead of the 8,000 warheads that they otherwise would have. That is a huge benefit for the security of the United States.

A decision to undermine the agreement and threaten the reductions which it has made possible is very serious business, indeed. That is what the Secretary of Defense told us, that is what the Secretary of State told us, that is what the Chairman of the Joi nt Chiefs of Staff, General Shalikashvili, told us.

They expressed grave doubts about the bill's language which would threaten our relationship with Russia. Those of us who strongly opposed the bill's provisions, relative to the ABM Treaty and national missile defense, also pointed out that the lan guage unilaterally declared in law what the dividing line is between a long-range missile, which is covered by the Antiballistic Missile Treaty, and a short-range missile, or theater missile, which is not covered by the treaty.

Senator Warner is exactly right, theater missiles are not covered by the ABM Treaty; only the long-range or strategic missiles are covered by that treaty. But what is the precise dividing line between the two? There is great bipartisan supp ort in this body for having defenses against theater missiles. That is allowed by the treaty, and it is a real threat. But what is the dividing line between the two? That is the subject of negotiations, because it is part of a treaty that was negotiated.< p> But under the bill language, there was a unilateral declaration as to what the dividing line was, and there was a prohibition on the President negotiating any other dividing line.

It is threatening enough to a negotiating partner to unilaterally declare something which is the subject of discussions and negotiations. It is particularly unsettling when the party that is representing us, the President, is not even allowed to negotiate anything other than what we declare unilaterally to be the dividing line. And the language in the bill, for which this language would substitute, actually prohibits the President or the President's representatives from sitting down and talking about what the dividing line should be. There was a funding prohibition which does not allow any funds to be spent even to negotiate, to talk, to discuss anything other than the dividing line, which we unilaterally declared in the Senate.

That is extremely unsettling to the negotiator on the other side of the table, and it makes it impossible to even discuss the subject because the language in this bill prevents anyone on our side to even talk to the other side about it.

Our amendment removes some of these very troublesome provisions. As the body well knows, we spent a long time debating this issue. My amendment, which would have struck some of the language which I have just described, lost by 2 votes. Subsequent to that, Senator Cohen, the Senator from Maine who has been a major contributor of just knowledge and background in this area, offered a sense-of-the-Senate resolution which was adopted by the Senate but which also raised some issues then about the underly ing language. And then the President, or at least his advisors, indicated that the President would veto this bill based on a number of problems that they saw. But a major problem that they pointed out as a cause for the recommendation to veto the bill was the language relative to national missile defense.

So, at that point, what the majority leader, the Democratic leader, the chairman of the committee and the ranking member of the committee did was appoint Senators Warner and Cohen on the Republican side, and Senator Nunn and myself on the Democratic side to see if we could negotiate a substitute version.

We have done that. We are going to be presenting it to the Senate for its consideration immediately following the recess, and I believe that our substitute cures a number of the defects in the underlying language.

First, the substitute amendment is explicit that there is no decision in this bill to deploy the national system. For instance, section 233(3) says that it is the policy of the United States `to ensure congressional review prior to a decision to deploy th e system developed for deployment under paragraph (2).'

I repeat this language because it is, to me, some of the most critical language in our substitute: That it is the policy of the United States `to ensure congressional review prior to a decision to deploy the system developed for deployment under paragraph (2) of'--this is congressional review of--`the affordability and operational effectiveness of such a system; (B) the threat to be countered by such a system; and (C) ABM Treaty considerations with respect to such a system.'

So the substitute is explicit on issues of affordability, military effectiveness, the impact on the ABM Treaty, and an assessment of the threat that must be made before any deployment decision is made.

Our substitute amendment allows the President to negotiate the demarcation between long-range and short-range missiles. Funds are restricted in this substitute for 1 year to implement an agreement which sets a different demarcation line, which our sense-o f-the-Senate language feels is the right demarcation line. But the President is permitted to negotiate and, as provided for by our language, is told that if there is a different line provided for by those negotiations, then the President must come back to us for the funding to implement a different demarcation line.

Now, our substitute does some other important things. It recognizes the ABM Treaty in a number of places and in a number of ways. While the bill that we seek to amend with this substitute provided for the deployment of a multisite system--no ifs, ands, or buts, the ABM Treaty be damned--our substitute amendment provides that the development of a system for deployment can take place. The development of a system takes place, but with plenty of ifs, ands, and buts--before any decision to depl oy is made.

I previously made reference to the fact that our substitute recognizes the ABM Treaty in a number of places and in a number of ways. Let me just briefly mention one of them. In section 233, subsection 8, our substitute states that it is the policy of the United States to carry out the policy's programs and requirements of subtitle C of title II of the act--and these next words are important for my point--`through processes specified within or consistent with the ABM Treaty, which anticipat es the need and provides the means for amendment to the treaty.'

Finally, Mr. President, let me say this. Even current law provides for the development for a deployment of a multisite system. But the current law attached conditions before any such deployment occurs. That is current law. Our substitute also provides tha t it is the policy to develop for the deployment of such a system. But it also attaches conditions to any deployment.

So the substitute amendment, Mr. President, does not commit the United States to deploying an ABM system, multisite or otherwise. It calls for development of such a system, which is already what we are doing, and explicitly requires Congress to re view the program `prior to a decision' to deploy such a system. It also says that the system shall be `capable of being deployed' at multiple sites but not that it must be deployed at multiple sites.

This substitute amendment limits the scope very clearly of any national missile defense system, so that it is intended for use only to defend against limited, accidental and unauthorized missile attacks. That is very different from the what the star wars system was intended to be.

This substitute amendment is the product of bipartisan negotiation. It is a significant improvement, in many respects--and I have only enumerated some--over the original version. It was discussed and debated by the four of us at great length over a period of a week. I particularly thank Senators Nunn, Cohen, Warner, and all of our staffs who spent not only day after day, but night after night negotiating this bipartisan substitute. I hope it finds favor with the entire Senate when we present it as an amendment to the defense authorization bill upon our return.

Mr. President, I ask unanimous consent that two documents that I prepared, the first called `Missile Defense Act Provisions: Old Versus New,' and the second, entitled `Missile Defense Act of 1995: Substitute Amendment,' be printed in the Record at this point.

There being no objection, the material was ordered to be printed in the Record, as follows:

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Missile Defense Act Provisions: Old v. New

Here are two critical questions concerning the Missile Defense Act, and a comparison between the original bill and the new substitute amendment.

(1) Does the Act commit the U.S. to deploy a national missile defense (NMD) system?

Answer: The original bill (S. 1026) does commit the U.S. to deploy a multiple site national missile defense system by the end of 2003, and an interim system by 1999.

The substitute amendment does not commit the U.S. to deploy a national missile defense system. It explicitly requires a congressional review of the program `prior to a decision to deploy' an NMD system. (It makes it the policy of the U.S. to `develop' an NMD system for deployment.)

Before Congress makes any decision to deploy a national missile defense system, it must first review four issues: the affordability and operational effectiveness of the system, the threat to be countered by the system, and ABM Treaty consideration s.

(2) Does the Act require the U.S. to violate the ABM Treaty?

Answer: The original bill does require the U.S. to violate the ABM Treaty by requiring the U.S. to deploy a multi-site NMD system by 2003, perhaps as early as 1999. And it declares it the policy of the U.S. to deploy a multiple-site NMD system.

The substitute amendment does not require the U.S. to violate the ABM Treaty. It states that U.S. policy is to carry out the provisions of the Missile Defense Act according to or consistent with the ABM Treaty.

h2>Missile Defense Act of 1995: Substitute Amendment

Side-by-side comparison of the Missile Defense Act in S. 1026 and the substitute amendment of August 10, 1995.

SEC. 233. POLICY

The bill asserted that the policy of the U.S. was:

--to `deploy a multiple site' national missile defense system that `will be' augmented to provide a larger defense in the future.

The substitute amendment has as the policy:

--to develop for deployment a national missile defense system that can be augmented.

--to negotiate with Russia to provide for such a system, based on the ABM Treaty.

--to consider, if those negotiations fail, the option of withdrawing from the ABM Treaty.

--the purpose of the system is to defend only against limited, accidental and unauthorized missile attacks a new provision in the substitute amendment states the policy that:

--Congress shall review the affordability, the operational effectiveness and the threat to be countered by the national missile defense system, and ABM Treaty considerations, prior to deciding whether to deploy the system.

The last new policy provision:

--to carry out the policies, programs and requirements of the Missile Defense Act through processes specified in or consistent with the ABM Treaty.

SEC. 234. THEATER MISSILE ARCHITECTURE

The Bill requires the Pentagon to meet certain dates for the specified programs.

The substitute amendment:

--relaxes the requirement to meet those dates,

--requires a report for each program/date explaining the cost and technical risk of meeting those dates,

--and requires a report on the specific threats to be countered by each TMD system.

SEC. 235. NATIONAL MISSILE DEFENSE ARCHITECTURE

The Bill requires the Pentagon to develop a national missile defense system which will be operational first in 2003. It requires the system to include ground-based interceptors `deployed at multiple sites'.

The substitute amendment requires the Pentagon to develop a national missile defense system that is capable of being first operational by the end of 2003. It states that the system shall include ground-based interceptors capable of being deployed at multi ple sites.

Interim capability:

The bill required the Pentagon to develop an interim capability to be operational by 1999.

The substitute amendment requires the Pentagon to develop a plan instead of a capability, and that it would give the U.S. the ability to have such an interim capability in place by 1999 if required by the threat.

The substitute amendment also requires a report that would include information on the cost of the program, the specific threat to be countered, and the Defense Secretary's assessment of whether deployment is affordable and operationally effective.

SEC. 237. POLICY REGARDING THE ABM TREATY

The Bill has sense of Congress language that:

--the Senate should conduct a review of the ABM Treaty,

--the Senate should consider establishing a Select Committee to conduct the review, and

--the President should cease all efforts to `modify, clarify, or otherwise alter' our obligations under the ABM Treaty.

The Bill requires the Secretary of Defense to provide a declassified record of the ABM Treaty negotiations. The substitute amendment adds findings related to the ABM Treaty, including that the policies, programs and requirements of the Mis sile Defense Act can be accomplished in accordance or consistent with the ABM Treaty.

The substitute amendment:

--strikes the proposal to establish a Select Committee

--strikes the proposal that the President cease all efforts to modify or clarify our obligations under the ABM Treaty

--strikes the entire provision calling for a declassified treaty negotiating record

--states that the Foreign Relations and Armed Services committees should conduct the review of the Treaty.

SEC. 238. PROHIBITION ON FUNDS TO IMPLEMENT A TMD DEMARCATION AGREEMENT

The Bill:

--states the policy that `unless and until' a missile defense system is tested against a target missile with a range greater than 3,500 km or a velocity greater than 5 km per second, it has not been tested `in an ABM mode' nor `been given capabili ties to counter strategic ballistic missiles' (both of which are prohibited by the ABM Treaty), and therefore is not subject to ABM Treaty application or restrictions.

--prohibits any appropriated funds from being obligated or expended by any official of the federal government to apply the ABM Treaty to TMD systems, or for `taking any other action' to have the ABM Treaty apply to TMD systems. (This would prevent any discussion or negotiation by federal officials with the Russians to consider any other demarcation than the one specified in the bill.)

The substitute amendment strikes Sec. 238 and replaces it with:

--two findings that restate items from previous Acts

--sense of the Congress language defining the TMD demarcation (3,500 km/ 5kps), and stating that unless a TMD system is tested above the demarcation threshold, the system has not been tested in an ABM mode, nor deemed to have been given capabiliti es to counter strategic ballistic missiles'.

--sense of Congress language saying that any agreement with Russia that would be more restrictive than the demarcation provided should require ratification.

--Binding prohibition on funding: FY 96 DOD funds cannot be used to implement a demarcation agreement unless: provided in a subsequent act (majority vote), or if the agreement goes through the ratification process.

Mr. COHEN. Mr. President, in June, when the Armed Services Committee marked up the Defense authorization bill, the committee voted to put the United States on the path to deployment of a highly effective system to defend the American people against limite d missile attacks.

Because we want to and must defend all Americans, not just those in a particular region of the country, we called for a multiple-site defense. And, because we can expect the threat to evolve to become ever more sophisticated, we called for a defensive sys tem that would also evolve and a research and development program to provide options for the future. Since the national missile defense program approved by the committee goes beyond that being pursued by the administration, we added $300 million above the $371 million requested.

We also called for deployment of highly effective systems to defend our forward deployed forces and key allies and, to ensure this result, reorganized the administration's theater missile defense effort. A related matter involved negotiations being conduc ted with Moscow to define the line distinguishing TMD from ABM systems. Over the last year and a half, the Clinton administration has drifted toward accepting Russian proposals to limit TMD systems in unacceptable ways--in effect, to subject TMD s ystems to the ABM Treaty, which was never intended to cover theater defenses. The committee addressed this troubling situation with two steps. First, we voted to write into law the Clinton administration's initial negotiating position on what cons titutes an ABM system. And second, we adopted bill language to prevent the administration from implementing any agreement that would have the effect of applying ABM Treaty restrictions to TMD systems.

Last week, when the defense authorization act came to the floor, the committee's judgment was challenged. One amendment was offered to delete the additional $300 million provided for national missile defense. And another amendment was offered to eliminate the policy to deploy a multiple-site national defense system, eliminate the statutory demarcation between TMD and ABM systems, and eliminate the ban on applying the ABM Treaty to TMD systems.

As was the case during the committee's mark-up, these efforts failed in relatively close votes.

Mr. President, I have been on the Armed Services Committee since 1979 and have spent most of that time in the majority. It has not been our practice for the majority to use its position to impose its views on the minority. Instead, we have usually sought to develop as broad a consensus as possible on important issues of national security.

In this spirit, Members of the majority also offered amendments on the floor to move beyond close, partisan votes toward a broader consensus.

Senator Kyl offered an amendment expressing the sense of the Senate that all Americans should be protected from accidental, intentional, or limited ballistic missile attack. His amendment setting forth this basic principle, which was the basis for the Armed Services Committee's action, was approved overwhelming, 94-5.

And to address the concerns of some Senators that the committee was advocating abrogation of the ABM Treaty, I offered an amendment affirming that the multiple-site defense we endorsed can be deployed in accordance with mechanisms provided for in the ABM Treaty--such as negotiating an amendment--and urging the President to negotiate with Moscow to obtain the necessary treaty amendment. My amendment was also approved by a very large margin, 69 to 26.

I highlight that vote margin because the bipartisan amendment we have negotiated would change even the language of the Cohen amendment, which was adopted overwhelmingly by the full Senate. I think this a clear indication of how far the majority has been w illing to go in accommodating the minority in order to build a broader consensus.

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THE BIPARTISAN AMENDMENT

The result of the negotiations that have occurred is the bipartisan amendment, which is being cosponsored by the four senators designated by the two leaders to resolve this issue. In order to reach agreement on this amendment, both sides made concessions, although it should be noted that many of the agreed upon changes are less concessions than clarifications of the Armed Services Committee's intent.

Senators interested in this matter can read the bipartisan amendment and compare it to current text of the bill. Our negotiations involved debate over almost every single word in subtitle C. For reasons of time, I will merely try to summarize the most imp ortant issues.

MISSILE DEFENSE POLICY

In section 233, which addresses missile defense policy, we have made a number of changes to clarify the intent of the committee's language.

The bipartisan text states that `it is the policy of the United States to develop for deployment a multiple-site national missile defense system.' The difference with the original text is that it substitutes the words `develop for deployment' for the word `deploy.' While I do not believe there was anything inappropriate with the committee's language, this change is consistent with the fact that what we are funding in this bill is research and development on national missile defense, not procurement. There will be a number of authorization and appropriations bills to be acted upon before we begin to fund the actual deployment of the system. I would note that the words `develop for deployment' were in the committee-approved bill, in the NMD architecture sec tion, and so this clarification is consistent with the committee's intent.

Moreover, I would emphasize that the policy section clearly states--as did the committee bill--that the system we are pursuing is a multiple-site system. As the findings make clear, a multiple-site system is essential if we are to defend all of the U.S. a nd not just part of the country. This is also made clear in the NMD architecture section, which states that the system must be optimized to defend all 50 States against limited, accidental or unauthorized ballistic missile attacks.

This is further bolstered by the new language inserted by the compromise at various places that the system must be `affordable and operationally effective.' An NMD system confined to a single ground-based site would not be operationally effective, as note d in the ninth finding.

The bipartisan text also states in the policy section that the NMD system will be one that `can be augmented over time as the threat changes to provide a layered defense against limited, accidental, or unauthorized ballistic missile threats.' This passage was of great importance to many Members on this side who are concerned about the ability of the system to remain effective in the face of an evolving threat.

The committee-approved language stated that the NMD system `will be augmented over time to provide a layered defense.' There were strong feelings on our side about the words `will be augmented.' In the end, we agreed to change this to `can be augmented.' Again, while the committee's language had much to commend it, funding for deployment of other defensive layers will not be appropriated for several years.

The other changes to this passage, such as the inclusion of the words `limited, accidental, or unauthorized' clarify the ballistic missile threat for which a layered defense would be required, reflect the intent of the committee's bill.

At the suggestion of the other side, a new paragraph was added to the policy calling for congressional review, prior to a decision to deploy the NMD system. This is fully consistent with the committee's intent and the realities of the congressional budget process. Funds to begin deployment of the NMD system are not in the bill before the Senate. Thus, when such funds are requested, that request will pass through the regular process of committee hearings and mark-ups, floor consideration, and conference ac tion.

Another change to the policy section was the inclusion of several portions of the amendment that I offered and that was approved by the Senate last week. This states that it is U.S. policy to `carry out the policies, programs and requirements of (the Miss ile Defense Act of 1995) through processes specified within, or consistent with the ABM Treaty, which anticipates the need and provides the means for amendment to the Treaty.'

It also states that it is U.S. policy to initiate negotiations with the Russian Federation as necessary to provide for the NMD systems specified in the NMD architecture section. At the urging of Congress in the Missile Defense Act of 1991, President Bush initiated such negotiations with Moscow. It is my understanding that tentative agreement was reached to provide for the deployment of ground-based multiple-site NMD systems. But the Clinton administration discontinued those negotiations. Under this legisl ation, it would be U.S. policy to once again engage Moscow in negotiations to amend the ABM Treaty or otherwise allow for multiple-site NMD systems.

The policy section then states that `it is the policy of the U.S. to . . . consider, if those negotiations fail, the option of withdrawing from the ABM Treaty in accordance with the provisions of Article XV of the Treaty, subject to consultations between the President and the Senate.'

I would note that both amendment to the Treaty, as provided for in Articles XIII and XIV, and withdrawal from the Treaty, as provided for in Article XV, are `processes specified within the ABM Treaty.'

Contrary to the concerns of some, the Armed Services Committee never advocated abrogation of the Treaty and the bill reported out by the committee neither required nor supported abrogation. The debate that took place during the committee mark-up made it c lear that there was absolutely no intent to abrogate.

These provisions regarding the ABM Treaty and negotiations with Moscow taken from the Cohen amendment and incorporated into the bipartisan amendment reaffirm what was always the intent of the committee.

Mr. President, I want to emphasize that these provisions and the other language in the section 233 clearly state that these policies are `the policy of the United States.' Not the policy of the Senate or the policy of the Congress. I say this because I ha ve heard that an administration official has said that, once this bill becomes law, the administration will declare that these statements of U.S. policy are not its policy but merely the sense of the Congress.

The bill makes a clear distinction between statements of U.S. policy and expressions of the sense of Congress. We have spent a great deal of effort negotiating exactly what statements will fall into the policy section and which will be in the form of sens e of the Congress. In fact, these negotiations began with Senator Nunn urging that the Cohen amendment be strengthened from being the sense of the Congress to a statement of U.S. policy.

Mr. President, I would merely note the obvious fact that once the bill becomes U.S. law, then the bill's statements of policy are U.S. policy.

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NMD ARCHITECTURE

The bipartisan amendment also provides changes and clarifications regarding the architecture of the national missile defense system.

The committee's bill stated that the NMD system `will attain initial operational capability by the end of 2003.' The bipartisan amendment states that the NMD system will be `capable of attaining initial operational capability by the end of 2003.' This is a useful clarification because while Congress can mandate many things, we cannot dictate with certainty that engineers will accomplish specific tasks within a specific period of time.

In subsection (b) of section 235, our side did make a significant concession. The committee's bill directed the Secretary of Defense `to develop an interim NMD capability * * * to be operational by the end of 1999.' In order to achieve agreement with the other side, we have modified this to require the Secretary `to develop an interim NMD plan that would give the U.S. the ability to field a limited operational capability by the end of 1999 if required by the threat.' In both versions, the interim capabili ty would have to not interfere with deployment of the full up NMD system by 2003.

Mr. President, I would also note that the bipartisan amendment retains the portion of section 235 that calls for a report by the Secretary of Defense analyzing `options for supplementing or modifying the NMD system * * * by adding one or a combination of * * * sea-based missile defense systems, space-based kinetic energy interceptors, or space-based directed energy systems.' As I discussed earlier, such options for layered defenses are of considerable interest to many Members.

To summarize, Mr. President, the bipartisan amendment both clarifies and changes the committee bill's provisions on national missile defense. It keeps us on the path toward a ground-based, multiple-site NMD system with options for layered defenses as the threat changes. But it recognizes that requests for NMD procurement funds will not be made for several years.

TMD DEMARCATION

The other issue that required much discussion was what is commonly referred to as the theater missile defense demarcation question. Senator Warner will discuss this at greater length, but I would like to summarize the resolution that was achieved i n section 238, which was completely rewritten with the assistance of many Senators.

The section has findings noting that the ABM Treaty `does not apply to or limit' theater missile defense systems. The findings also note that `the U.S. shall not be bound by any international agreement that would substantially modify the ABM Treaty unless the agreement is entered into pursuant to the treaty making powers of the President under the Constitution.' What this means is that any agreement that would have the effect of applying limits on TMD systems under the ABM Treaty m ust be approved as a treaty by the Senate.

Section 238 then states the sense of Congress that a defensive system has been tested in an ABM mode, and therefore is subject to the ABM Treaty, only if it has been tested against a ballistic missile target that has a range in excess of 3 ,500 kilometers or a velocity in excess of 5 kilometers per second. This threshold is the one defined by the administration and proposed in its talks with Moscow on this subject.

Finally, section 238 has a binding provision that prohibits implementation during fiscal year 1996 of an agreement with the countries of the former Soviet Union that would restrict theater missile defenses. This prohibition would not apply to the portion of an agreement that implements the 3500 kilometer or 5 kilometer per second criteria nor to an agreement that is approved as a treaty by the Senate.

But it would apply to all portions of an agreement that sought to impose any restrictions other than the 3500 kilometer or 5 kilometer per second criteria.

At the same time, Mr. President, there are no constraints on the ability of the President to engage in negotiations on the demarcation issue, which I know was an issue of concern to some. What section 238 controls is the implementation of any restrictions on TMD systems.

Mr. President, I want to acknowledge the efforts of the many Senators who contributed to the drafting of this amendment. Every member of the Armed Services Committee played a role, as did the two leaders, and key Senators off the committee. Senator Kyl played a very constructive role, offering language that formed the basis for the resolution on section 238 and providing useful suggestions on the NMD portions of the bill. The chairman of the Armed Services Committee is to be especially commended fo r providing strong guidance to the negotiators and the committee, as a whole, and facilitating the talks along the way.



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