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Public Statements

National Defense Authorization Act for Fiscal Year 2006

Location: Washington, DC



Mr. BIDEN. Mr. President, I will vote in favor of the Ensign amendment to this bill, relating to the use of riot control agents, and I want to make clear to my colleagues why a steadfast supporter of the Chemical Weapons Convention can do so in good conscience. Senator Ensign is concerned that current interpretation of U.S. policy and of U.S. obligations under international law might be hampering U.S. forces in Iraq. I gather that not everybody shares that belief, but I do not doubt that some people have this concern, and I appreciate Senator Ensign's desire to make sure that people in the military fully understand what they can and cannot do when it comes to using riot control agents in Iraq.

What is important about the Ensign amendment, in my view, is that it will in no way modify either U.S. policy or U.S. international obligations regarding the use of riot control agents. The statement, in subsection (a) of the amendment that ``riot control agents are not chemical weapons'' is fully consistent with the Chemical Weapons Convention, in which ``riot control agent'' is defined as a chemical, not listed in any of the Convention's three lists of chemical weapons or their precursors, ``which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.'' That definition is quite different from the definition of a ``toxic chemical'' in a chemical weapon, ``which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.'' So the Ensign amendment is correct in that a riot control agent, as defined in the Chemical Weapons Convention, would not be a chemical weapon as defined in that convention.

Similarly, the Ensign amendment now before this body accurately reflects U.S. policy as established by President Gerald Ford in Executive Order 11850 of April 8, 1975. That Executive order, signed by a Republican President and implemented by six subsequent Presidents of both parties over the last 30 years, states: ``The United States renounces, as a matter of national policy ..... first use of riot control agents in war except in defensive military modes to save lives.......'' It goes on to give four examples of such defensive military modes, only two of which relate to combat zones:

``(b) ..... in situations in which civilians are used to mask or screen attacks and civilian casualties can be reduced or avoided''; and

``( c) ..... in rescue missions in remotely isolated areas, of downed aircrews and passengers, and escaping prisoners.''

Executive Order 11850 then orders implementation, as follows:

``Sec. 1. The Secretary of Defense shall take all necessary measures to ensure that the use by the Armed Forces of the United States of any riot control agents and chemical herbicides in war is prohibited unless such use has Presidential approval, in advance.

``Sec. 2. The Secretary of Defense shall prescribe the rules and regulations he deems necessary to ensure that the national policy herein announced shall be observed by the Armed Forces of the United States.''

As far as I can tell, Senator Ensign does not intend that anything in Executive Order 11850 be changed, nor that there be any change in the U.S. policy and obligation to fully obey the Chemical Weapons Convention, which binds each state party ``not to use riot control agents as a method of warfare.'' It is standing U.S. policy that if somebody is using human shields, as occurred in Somalia in the early 1990s, our Armed Forces may use riot control agents ``in defensive military modes to save lives'' without violating our obligations as state party to the Chemical Weapons Convention.

In light of my view that the Ensign amendment will not change U.S. policy and will not call into question the requirement to comply with our international obligations under the Chemical Weapons Convention, I see no reason to oppose this amendment. I do urge, however, that the limited nature of this amendment be made more explicit in conference.

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