NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1996--CONFERENCE REPORT (Senate - December 15, 1995)
Sen. NUNN.As I said on the floor of the Senate this morning, and as I said when I signed the conference report earlier this week, I have serious reservations about the conference report and I will vote against the it when we vote. I also made it clear this morning that, in my judgment, the report speaks for itself. Each Senator can readily make his or her own judgment as to whether the conference report merits their support.
On Monday I will give a detailed speech outlining my concerns--assuming we are on the conference report on Monday, or whenever we are on it. For now, I will just highlight my major objections.
The ballistic missile defense legislation contains national defense language which goes well beyond the mandates both of the House-passed and of the Senate-passed bill. As Senators will recall on this subject, during the debate on the Senate bill, Sena tor Thurmond asked that Senator Levin and I join Senator Warner and Senator Cohen to work on the missile defense language because there were obviously a great number of Senators who were very concerned about that language. A number of us had voted against that language in the committee. I was concerned about it. It was apparent that the bill on the Senate floor was going to have a hard time being brought to a conclusion without some conse nsus on ballistic missile defense.
We spent about 4 or 5 days working very carefully with every word of that language. We made very substantial changes from what had come out of the Senate committee. We worked closely with the White House to make sure that whatever product we presented
as a compromise would be something that the President would be able to sign. We achieved that through a great deal of effort. In the conference to work this out, I again worked with Senator Thurmond and others, including Congressman Mr. President, the bottom line of all this is that the missile defense language in this act goes well beyond the mandates both of the House-passed bill and the Senate-passed bill. I will go into more detail on Monday on this, or whenever I speak again.
But this is not an issue to be taken lightly. This is not an issue that is a question of one word or two words or one sentence. This is enormously important.
We have achieved, under Republican Presidents primarily, an arms control agreement called START II. That arms control agreement, I believe, has come out of the Foreign Relations Committee now. Although I am not certain, I believe the vote was unanimous
.
There is no doubt in my mind that all the defense experts that I know have concluded that this agreement is in the best national security interests of the United States and Russia. This START II Treaty has not been approved by the Duma in Russia and it
is much more controversial there than it is here. The one thing we know is that if we convey the impression in this bill or in this conference report that the United States Senate is going to breach in any way or disregard or have an anticipatory breach
of the ABM Treaty, that action will make it extremely unlikely that the Russian Duma will ratify the START II Treaty.
In the name of protecting our own country against missiles that may be aimed against this country in the future, it would be the supreme folly if we passed a piece of legislation that is going to unwind the efforts made by several Presidents to get to
the point where we have dramatically reduced the number of Russian missiles that are aimed at the United States. Those reductions are going to occur in START II, if that treaty is ratified. If we do something in this legislation, whether we intend it or n
ot, that inadvertently causes that treaty not to be ratified in the Russian Duma, then we would have taken probably the most gigantic step backward in arms control that we have taken in many years.
I emphasize, this START II Treaty basically requires dismantling literally thousands of missiles that for years have been aimed at the United States, including missiles that we called MIRV'd, multiple warhead missiles. We have feared for years that these
missiles could cause tremendous problems in terms of the nuclear balance and could lead to an incentive for one side to strike first.
This is not trifling. This is not picking at words. Every word in this Missile Defense Act is of great importance and the White House, the Department of Defense, and the National Security Council and the State Department have every reason to examine ev
ery word. And, regarding things to which we do not completely attach the same significance, we must remember that they are the ones negotiating with the Russians. They are the ones in touch with the Russians on a day-by-day basis, and it is the executive
branch that really has to work on this matter. So we have to have, I think, some deference to their judgment.
This conference struggled and tried. We tried to get it worked out. I think it was a good-faith effort by Senator Lott, the Senator from Mississippi, Congressman Weldon, myself and others. But we did not achieve that g
oal, primarily because the House insisted we continue to work from the House language. Every time we worked out one problem with two or three words here, two or three words there, instead of working off the Senate language so we would have known what the
underlying fundamental provisions were, it came back in some sort of a new conglomeration of House language. All of this is in multiple pages, anywhere from 10 to 20 pages. Therefore, we had to go over every word again.
This went on and on and on. Finally, I had suggested many times that we should work off the Senate language, which would have narrowed the scope of what we had to examine. But, finally the time came when I know Senator Thurmond had to
make a decision, as did his counterpart, Congressman Spence, to complete this conference report. I understand their position. But this is enormously important. The Department of Defense and the White House disagree with this language. The
re are legitimate and sincere fears that this kind of language could end up being extremely counterproductive to our Nation's security. I share those apprehensions and I will urge all Senators to take a close look at this language.
My second problem with this bill is that it includes a specific legislative provision that would abolish the statutory requirement which came from the Congress of the United States--Senator Cohen and I led the way on this--for the Assi
stant Secretary of Defense for Special Operations in Low Intensity Conflict.
I believe that abolishing that statutory authority could undermine civilian oversight of special operations. Special operations forces are absolutely necessary. These are the specialists. These are the people--the SEALS and the special forces--who go i
nto very dangerous situations in almost every area. They are the best trained military individuals we have. They take the most risk. They are in many types of activities, including activities of a highly classified nature.
The Special Operation Force was begun by a legislative act which Senator Cohen and I co-authored. We decided at that time--and I think that the wisdom of that decision has been demonstrated very clearly--that, if we are going to have t
hose kinds of special forces, we need civilian control not just in the general sense but in the sense of having an Assistant Secretary of Defense who is responsible for the Special Operation Forces. The issue is civilian control. We do not want to lose th
e civilian control of those forces.
But this legislation, in my view, mistakenly abolishes the Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict. That does not mean, in theory, that there will not continue to be civilian control with the Secretary of Defens
e in charge. It means that the focus of civilian control over special operations on a daily and weekly basis is likely to be eliminated with the abolishment of the statutory requirement for that position. I think this is a mistake. It is a fundamental mis
take.
. . .
Mr. BUMPERS.
One other question, because the Senator from Georgia was very active in crafting the so-called ABM language when that bill was in this Chamber. My staff has indicated to me that this bill would torpedo the ABM Treaty. Could the Senator from Georgia com
ment on that?
Mr. NUNN. I say to my friend from Arkansas, I would not go quite that far. I would say that is the apprehension that the interpretation of this language could lead some, perhaps all in the Russian Duma that will be considering this, to believe that thi
s is in the nature of what I would call, for lack of a better term going back to law schools days, an anticipatory breach.
I do not think anyone could say that this is a direct breach because nothing has happened. Passing a law does not make it happen. But there is an old story from law school I recall well in a course on contracts in which the professor was trying to expl
ain what anticipatory breach meant, and he said:
Let's assume that a man goes from Atlanta, Georgia, to New York and negotiates for 2 weeks to sell the Hurt Building. This was a big building in downtown Atlanta. Now it is not one of the big ones, but it was well known back when I was in law school.
He finally concludes the contract. They sign the deal, and the buyer agrees to buy it for a certain amount and the seller agrees to sell it. And so the buyer says, `Let's go out to dinner and celebrate. We have been negotiating long and hard.' But the sel
ler says, `No, I can't do it. I've got to rush back to Atlanta.' The buyer then said, `Why? You have been here 2 weeks. Why don't you relax and celebrate. You have just sold a big building. I don't see why you have to go back to Atlanta.' To which the sel
ler replied `Because I have to go back down there and buy that building.'
Well, he just sold something he did not own. Now, the contract did not call for performance for another 30 days. So it was not direct breach, but it is in the legal terms an anticipatory breach. And that is what the fear is here, that this could be tak
en as anticipatory breach.
Mr. BUMPERS. I think the Senator describes the situation perfectly.
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