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Mr. KYL. Mr. President, I wish to make a comment. For the benefit of Members, what we are trying to do is to identify those matters we need to try to deal with in the 30 hours postcloture on the START treaty. If Members have amendments they need to deal with, I would appreciate it if they would either communicate with me or with Senator Lugar's staff or Senator Kerry's staff so that we can determine whether to get them on the list and where to plug them in. I would also suggest to Members that there isn't a lot of time left, and if they have comments they would like to make, now is the time to come to the Senate floor. There shouldn't be a minute of quorum call time here. There is a lot to do and not a lot of time to do it. So if Members have something, bring it to us. If they want to speak, they should come to the floor now or as soon as they can get here.
My goal is to get as many of the amendments as possible dealt with, if not with a vote then worked out by unanimous consent. What I have tried to do is to take a universe of about 70 amendments and to consolidate them into a much smaller group. So there are some specific subject areas that are not specifically dealt with. In some cases, the consolidations may not be technically related. For example, Senator LeMieux would like to add to one of the amendments his language dealing with tactical weapons taken from his treaty amendment but to conform it to a resolution of ratification amendment. So we may be even combining some subjects that don't necessarily relate.
The object here is to cover as much ground as possible within a limited period of time, and in order to do that we will need everybody's cooperation. Senator Kerry and I will then--and Senator Lugar, of course--primarily try to make sure everybody gets heard who wants to be heard.
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Mr. KYL. Mr. President, in response to the last argument that the Russians don't have any incentive to and we don't believe they are going to build the rail mobile system again, I ask, then: What is the big deal about ensuring in the treaty that if they do, they would be counted under the 700? What is the problem? The problem appears to be that the Russians don't have the same view of this as do my colleagues or the United States Government.
My colleague from Nevada quoted earlier from the Interfax report of October 29, 2010, where the chairman of the Russian Duma--parliament--committee responsible for treaties, Konstantin Kosachyov, stated--in response to the argument we have just made, that the Senator from Nevada just made, that the treaty should include rail-mobile as part of the 700 limit--he stated, in response to that claim, and in response to the resolution of ratification of the Foreign Relations Committee, that U.S. claim compelled the Duma to stop action on the treaty. He said--and I am quoting:
The Americans are trying to apply the New START Treaty to rail-mobile ICBMs in case they are built.
That, obviously, means if he is saying: We would have to stop the Duma action on this if that is what the U.S. Government is going to claim, they are pushing back on this pretty hard. The question is, why? I do not know whether they intend to build the rail-mobile system. I do not much care whether they build it. All we care about is, if they do, it has to be included within the 700 limit.
Now, the report language of the Senate Foreign Relations Committee confirms the fact that they are not included. Here is what the report language says--and this is in direct contradiction to what was said just a moment ago--this is from page 17 of the report--
Nevertheless, while a new rail-mobile system would clearly be captured under the Article II limits despite the exclusion of rail-mobile launchers from the definition of mobile launchers of ICBMs, those provisions that actually use the defined term ``mobile launcher of ICBMs'' would not cover rail-mobile systems if Russia were to reintroduce them.
``Would not cover.''
It goes on to say:
``Appropriate detailed arrangements for incorporating rail-mobile ICBM launchers and their ICBMs into the treaty's verification and monitoring regime would be worked out in the Bilateral Consultative Commission.'' Under Article XV ..... the Parties may make changes to the Protocol or Annexes. .....
We have discussed this in the past. If there is a dispute about what the treaty means, then you go to this dispute resolution group of Russians and Americans, and they try to talk it out and work it out. But there is nothing to say they will, and if the Russian chairman of the committee is already saying we are trying to insert something into the agreement that isn't there, I wonder how successful we would be in working it out.
The report concludes:
If Russia were again to produce rail-mobile ICBM launchers, the Parties would work within the BCC to find a way to ensure that the treaty's notification, inspection, and monitoring regime would adequately cover them.
So it is clear that it does not. It is clear from the report that the language would not cover rail-mobile systems if Russia were to reintroduce them. It is clear we would have to rely upon the Russians' good offices, good intentions, to reach some kind of an agreement with us in the Bilateral Consultative Commission. There are no assurances that will be done.
Why are we willing to proceed with an agreement that has such built in ambiguity? Why say: Well, we will let that be worked out by the BCC when we could work it out right now? It is the same answer we get with respect to every one of these proposals: Well, the Russians would then demand to renegotiate the treaty.
I ask again: Is the Senate just to be a rubber stamp? We cannot do anything to change the treaty or the protocol, or just the resolution of ratification, which is what we are trying to do because the Russians would say no, and, therefore, we cannot do it?
I thought we were the Senate. We are one-half of the U.S. Government that deals with it. The other is the Executive. The Executive negotiated the treaty. Now, why didn't they include this language? We do not know because we do not have the record of the negotiations. What I am told is that it is because the Russians said they would not include it because the rail-mobile system would be unique to Russia, and we do not have such a thing. Therefore, there would be a lack of parity. You could not have such a unilateral provision. So if that is the case, either the Russians do intend to develop these systems, and they do not want them counted, or there should be no problem with the Ensign amendment, which would ensure that they would be counted.
So you cannot read the report language and agree with what has been said--that the treaty covers these weapons--you cannot read it and believe they would clearly be covered by the inspection and notification and monitoring regime. In fact, it clearly shows that is not the case. What you have to believe is that this built-in dispute in the treaty may well arise if the Russians decide to proceed to develop such a system, and we would then--or would arise if they decide to do that, and we would be required to go to the BCC to try to work it out with them. That, obviously, builds in a conflict that is not good.
As I said before, when you have a contract between two parties, the first thing the lawyers try to do is ensure there are no ambiguities that could cause one side or the other to later come forward and say: I did not mean that. Then you have a legal dispute. But it is one thing to have a legal dispute about buying a car or a house. It is quite another to have a dispute like this between two sovereign nations.
I would note when the United States had a system we might develop, such as the rail-mobile--but we have not made a decision to do it; we certainly do not have it--the Russians knew we wanted to at least study the possibility of developing a conventional Prompt Global Strike capability--that is to say, an ICBM that could carry a conventional warhead rather than a nuclear warhead--and they specifically insisted that we include that in the treaty.
Now, you might say: Well, wait a minute. The Russians apparently argued that they did not want to include anything on rail-mobile because the United States did not have anything on rail-mobile, and that would be a lack of parity--it would be a unilateral restriction--but the same thing is true with conventional Prompt Global Strike. The Russians have no intension of doing that, apparently. We might, just like for the rail-mobile, the Russians might. Yet they insisted a limitation be put on our conventional Prompt Global Strike--by what?--by counting them against the 700 launcher limit--exactly the same thing that should be done with regard to rail-mobile.
So, apparently, if we might do something in the future the Russians do not like, we have to count it. But if the Russians might do something in the future we do not like, we cannot count it. Our only relief then is to go to this BCC and hope the Russians would agree to something in the future that they have not been willing to agree to today.
So all the Ensign amendment does is to clear up an ambiguity and avoid a future dispute between the parties. It is clear from the report that it is not covered now. Again, the language, ``those provisions that actually use the defined term `mobile launchers of ICBMs' would not cover rail-mobile systems if Russia were to re-introduce them.''
The report acknowledges that, therefore, in order to apply the inspection and notification and monitoring regimes, you would have to get the Russians to agree in the BCC. Why not solve that problem right now?
Again, we meet with the same argument we are always met with: Well, we do not dare change anything in here because the Russians would disagree.
I just ask my colleagues, again, is there any purpose for us being here? If every argument is, well, we do not dare change it because the Russians would disagree, so we would have to renegotiate it, maybe that suggests that there was not such a hot job of negotiating this treaty in the first place. If the Senate cannot find errors or mistakes or shortcomings and try to correct them without violating some superprinciple that is above the U.S. Constitution, which says that the Senate has that right, then, again, I do not know what we are doing here.
So I urge my colleagues to support the Ensign amendment, as with some other things we have raised, to try to avoid a conflict. Resolve the situation now while we still have time to do it rather than after the treaty is ratified when it is too late.
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Mr. KYL. Madam President, might I pose a question to my colleague because I understand exactly the point he makes. He makes it accurately. I quoted the language that says that it would clearly be captured under article II limits. That is the committee's understanding, which is the point my colleague is making. But I go on to note that the exclusion of rail-mobile launchers from the definition means that it would not cover rail-mobile systems if Russia were to reintroduce them and, therefore, there would have to be work by the BCC to figure out how to deal with those under the inspection, monitoring, and notification regimes.
I understand that our committee says they believe they are captured. I see that in the report. What I am saying is, there is a dispute because the Russians do not appear to agree with that. I would just ask my colleague, how do you square, then, the Russian response? The chairman of their committee--you have dueling committees--in the Duma said:
The Americans are trying to apply the New START Treaty to rail-mobile ICBMs in case they are built.
It appears to me what he is saying is, but they should not be doing that. In fact, his recommendation, I believe, was the Duma not take action on the treaty if that was our intent.
Mr. CARDIN. Madam President, will the Senator yield?
Mr. KYL. Yes, of course.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. To me, it is the language of the treaty itself. The language of the treaty itself is pretty clear as to what the definition of a launcher is, with three exclusions. Just look at the language of the treaty that any type of launcher would be covered.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Madam President, if I could just close, and I actually had, I think, yielded the floor. So I appreciate the chance to make this final point.
All the Ensign amendment tries to do is clear up the ambiguity. My colleague says it is absolutely clear to him that they are included. I know the committee says they think it is clear. I do not think the Russians think it is clear, and I think there is a basis for an argument that it is not clear. Why not clear it up?
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KERRY. Madam President, the answer to the question--why not clear it up--is because if you clear it up the way the Senator is trying to, you kill the treaty. Pretty simple.
The Senator keeps asking the question, Why can't we do this? We can't do it because it kills the treaty. It is pretty simple. And the Senator knows it kills the treaty.
Now, going beyond that, come back again just for an instant to the substance. First of all, the Russian general staff--I have been known, as chairman of the Foreign Relations Committee, to make some comments which occasionally the Joint Chiefs of Staff do not agree with. My comments are not going to drive them to do what they do not agree with. Likewise, the chairman of their foreign relations committee whom he quotes was tweaking us in his comment. But the fact is, the general staff of Russia has made it abundantly clear they do not want to build these rail-based mobile. They have no intention of doing this. They have just been destroying them. They have been taking them down and destroying them in a completely verifiable manner, and the Senator from Arizona cannot contest that. He knows that is absolutely true.
So this is a completely artificial moment designed, as others have been, to try to derail--no pun intended--the treaty.
That said, let me also point out that if you want to try to rein in this issue of rail-based, this amendment is not the way to do it because there are a whole series of protocols set up in the treaty for how you deal with road-based launchers, and you would need to begin to put in place a whole different set of protocols in order to deal with rail-based. So if, indeed, the Russians are, as I said, crazy enough, as they think it would be crazy--that is the way they define it now and we do too--to go back to something we have spent the last 15 years destroying, if that happens, we will know it. Moreover, if it happens, it is counted, as the Senator has agreed, under the article II limits for launchers. So this is a nonissue, with all due respect.
I know the Senator from Nevada wants to take 2 minutes to make a comment, and then I wish to make a unanimous consent request, if I could, after that.
Mr. ENSIGN. Madam President, I think the Senator from Arizona wishes to make a statement.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Before my colleague from Nevada closes, I know this whole argument is based on the proposition that the Russians wouldn't be crazy enough to think about doing a rail system again so we don't need to worry about it. What is all the fuss, is what my colleague said.
Well, here is a December 10--how many days ago is that now? I have forgotten. We are about to Christmas, but I have forgotten the date of today. It is from Moscow ITAR-TASS, English version. Headline: ``Russia Completes Design Work For Use Of RS-24 Missiles On Rail-based Systems.''
I want my colleague from Massachusetts to hear this. The Russians aren't crazy enough to think they could do a rail system. Here is the headline, December 10: ``Russia Completes Design Work For Use of RS-24 Missiles On Rail-based Systems.''
Just to quote a couple lines from the story:
Russia has completed design work for the use of RS-24 missiles railway-based combat systems, but implementation of the project has been considered inexpedient, Moscow Heat Engineering Institute Director Yuri Solomonov said. His institute is the main designer of these missiles. Asked whether the RS-24 missiles could be used in railway-based systems, he said, ``This is possible. The relevant design work was done ..... '' and so on.
I ask unanimous consent that this article be printed in the Record.
There being no objection, the material was ordered to be printed in the RECORD.
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Mr. KYL. Madam President, I am not arguing that this issue has been resolved within Russia as to whether to go forward. I am not arguing whether it is a good thing or a bad thing. I simply submit it in response to the argument that the Russians would be crazy to think about doing this. Either they are crazy or--well, in any event, I would never attribute that motivation to anybody, even somebody from another country. The fact is, they have begun design work on exactly such a project.
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Mr. KYL. Madam President, obviously one of the purposes of these two amendments is to respond to one of the arguments that has been raised in support of this treaty. We have this wonderful new reset relationship with Russia, and were we to not ratify the treaty, that relationship would be frayed, and who knows how much Russia might react to it? It would be harder to get their cooperation on things. Those are all arguments that have been made.
I think one of the points of these two amendments is to show that the reset relationship between Russia and the United States has not produced all that much good behavior or cooperation on the part of the Russians. I earlier detailed all of the ways--at least a few--in which Russia had been very unhelpful to the United States with regard to Iran. I noted I think 2 days ago or maybe yesterday that in the U.N., they were trying to water down a resolution dealing with North Korea that we are working hard to try to obtain. They have been very difficult to deal with with regard to North Korea and Iran. At the end of the day, I think they only do what is in their best interest, in any event--not basing their decisions of what is in their best interests on some concept of a new friendliness with the United States.
I think part of the reason my colleague from Idaho offered these two amendments is to simply demonstrate that this new relationship isn't all that its cracked up to be if they won't even give us some equipment they confiscated when they invaded Georgia. That is not a major point in international diplomacy, and it certainly isn't a major point with respect to U.S. military capability. It is illustrative of something.
The point of the amendment is to say that you have quite a bit of time before this treaty enters into force. A lot has to happen. It is sent to Russia, the Duma has to deal with it, and so on.
Just return the stuff. Maybe that little gesture of good will would help to reestablish this so-called reset relationship in ways they have not been able to accomplish by getting Russian support with the U.N. resolutions and other actions with regard to sanctions on Iran and diplomacy with North Korea.
One can say it is not a big deal, this military equipment, but on the other hand, they say it will destroy the treaty if we have this particular amendment. The reality is that we are simply trying to make a point that the Russians have not acted well in a variety of situations. I cannot think of a better example than the invasion of Georgia, the continued violation of the cease-fire agreement they signed there, and the violation of the U.N. resolution.
I would reiterate, at the summit declaration--this is where the NATO members, meeting in Lisbon last month, joined together to call for a resolution to the problem, saying, ``We reiterate our continued support for the territorial integrity and sovereignty of Georgia within its internationally recognized borders.'' And then they urge all to play a constructive role and to work with the U.N. to pursue a peaceful resolution of the internationally recognized territory of Georgia. And then the final sentence:
We continue to call on Russia to reverse its recognition of the South Ossetia and Abkhazia regions of Georgia as independent States.
That is the kind of cooperation we are getting from the Russian Federation these days. I appreciate the amendments brought forth by my colleague to highlight that fact.
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Mr. KYL. Mr. President, this is actually a very straightforward amendment. It simply seeks to repeat in this New START treaty the same thing the then-Soviet Union and United States did in the previous START I treaty with respect to a particular kind of weapon--a Russian weapon called the SLCM or sea-launched cruise missile.
As part of START I, we reached a binding side agreement--a side agreement--because the Senate had said we needed to include these weapons in the treaty. So a side agreement was reached that they would limit a deployment of sea-launched cruise missiles or the SLCMs due to their impact on strategic stability, the point being that whether these sea-launched cruise missiles are deemed tactical or strategic, they actually have a strategic component, especially if they are sitting right off your coast and they are launched and they can hit your country. So that agreement was put into a side agreement between the then-Soviet Union and the United States.
But when this New START treaty was negotiated, there was no similar side agreement. So there were no restrictions on SLCM deployments. The side agreement in the START treaty limited both nations to fewer than 800 SLCMs with a range greater than 600 kilometers. In the 2010 Nuclear Posture Review, the administration committed to unilaterally eliminating our SLCM capability.
The United States will retire the nuclear-equipped sea-launched cruise missile (TLAM-N).
Under Secretary Miller said:
The timeline for its retirement will be over the next two or three years.
Now Russia is developing a new version of its SLCM, with a range of up to, approximately, 5,000 kilometers, which is a longer range than some of the ballistic missiles that are covered by the New START treaty.
So that is why we believe there should be a side agreement, just like there was in START I, that deals with these SLCMs. We are not going to have them, Russia is. Yet there is nothing in the treaty that would count their SLCMs against the total limit of warheads or delivery vehicles that are allowed under the treaty or in any other way deal with them.
The administration assures us we should not be concerned about a lack of a formal agreement. Secretary Clinton noted that the START I treaty did have a limitation on sea-launched cruise missiles and said that both parties ``voluntarily agreed to cease deploying any nuclear SLCMs on surface ships or multipurpose submarines.''
But today it is obvious, with the information about Russian plans, that there is going to be a great disparity between the United States and Russia. As I said, it is not obvious that saying one is tactical, as opposed to the strategic weapons that are otherwise limited by this treaty, is a very important distinction. I think it is really a distinction without a difference.
Steve Hadley, the former head of the NSC, said:
And if you're living in eastern or central Europe, a so-called tactical nuclear weapon, if you're within range, looks pretty strategic to you. So what are we going to do about those?
As I said, he was the National Security Adviser.
Ambassador Bob Joseph, in testimony before the Foreign Relations Committee, said:
Every time I hear the term ``nonstrategic nuclear weapons,'' I recall that no nuclear weapon is nonstrategic.
If you stop and think about it, that is certainly true.
So these weapons, which are very powerful, and can have a range of up to 5,000 kilometers, clearly need to be dealt with.
Now, we did not want to insist that they go back and renegotiate the treaty because we heard that argument before, so what we are suggesting by this amendment is simply to do the same thing we did in START I--just have it be a side agreement where the two parties would agree to limit the number. Our administration would limit the Russians so they would not have a significant number of these particular weapons.
Just a point, by the way: In the event there are folks who do not believe the Russians intend to rely on their weapons such as the SLCMs, Under Secretary of Defense Flournoy said: The Russians are ``actually increasing their reliance on nuclear weapons and the role of nuclear weapons in their strategy.''
Secretary Gates has made the same point. He said:
Ironically, that is the case with Russia today, which has neither the money nor the population to sustain its Cold War conventional force levels. Instead, we have seen an increased reliance on its nuclear force with new ICBM and sea-based missiles, as well as a fully functional infrastructure that can manufacture a significant number of warheads each year.
And the Strategic Posture Commission noted:
This imbalance in non-strategic nuclear weapons, which greatly favors Russia, is of rising concern and an illustration of the new challenges of strategic stability as reductions in strategic weapons proceed.
The point has been made by many others as well.
So I think this is fairly straightforward. It would require the United States to negotiate a side agreement with Russia, very similar to the side agreement we had under START I, to deal with a weapon that we are no longer going to have, but the Russians are apparently developing a new version of, that has a pretty substantial range--5,000 kilometers. Clearly, it is very difficult to distinguish the difference between a weapon like that and the strategic offensive weapons that are otherwise dealt with in the treaty.
I hope my colleagues will recognize this is not a treaty killer, and it is something that needs t be addressed.
Thank you, Mr. President.
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Mr. KYL. Mr. President, I am a little bit flummoxed here because I thought in a conversation I had a couple of days ago with Senator Kerry that side agreements might be all right; that we didn't want to amend the preamble or didn't want to amend the treaty but that we could perhaps do some side agreements. So we structured this as a side agreement just exactly as was done in START I.
Mr. KERRY. Will the Senator yield?
Mr. KYL. On the Senator's time, I would be happy to.
Mr. KERRY. I would be happy to urge, if he wants to change the amendment or if he wants to submit--it is too late now, but we could perhaps do a modification by unanimous consent to urge the President to enter into an agreement but not shelve the whole treaty until that happens. That is the difference. So I am not going back on the notion. It would be great to get a side agreement, but don't hold this agreement up in the effort to do it.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, there was no delay in the implementation of the START I agreement because of a requirement that a side agreement be entered into between the then-Soviet Union and the United States on SLCMs. So I don't buy the notion that this necessarily would delay anything.
Secondly, we are not talking about tactical missile limitations generally. All we are doing is talking about the same kinds of missiles that were the subject of the side agreement under START I. I suspect that part of the reason was because it is pretty difficult to distinguish as to whether these weapons are being used for a strategic or a tactical purpose. Senator Kerry has said they cannot upset the strategic balance. I simply totally disagree with that proposition. They absolutely can upset the strategic balance, depending upon where they are located or how they intend to be used. That is one of the reasons I suspect they were limited under the START I treaty.
My colleague said they can't threaten our submarine fleet at sea and they pose only a limited threat to ICBM sites. Well, that may be the opinion of our experts. They could sure threaten our submarine bases in Washington State at King's Bay. They could take out bases or other assets we have.
In fact, let me quote from a Russian article, the RIA Novosti Report of April 14, 2010, on the Graney class nuclear submarines:
Graney class nuclear submarines are designed to launch a variety of long-range cruise missiles up to 3,100 miles or 500 kilometers with nuclear warheads and effectively engage submarines, surface warships, and land-based targets.
Obviously, at 5,000 kilometers, as I said, that is a range longer than some of the ballistic missiles that are covered by the New START treaty. So these weapons--it is a little hard to characterize them as either tactical or strategic. I think it depends upon how they are used.
But the point is, if my colleague believes they can't threaten anything, then what is the problem with trying to set a limit on them? Well, obviously--or at least I assume obviously--the Russians don't want to do that. I assume we raised this, though we don't have the negotiation record, so I don't know whether it was raised. If it wasn't, why wasn't it? And if it was because we didn't think there was any threat to the United States, then I think it would be very important to ask some of our military folks why they think that is the case given the kinds of targets that could be held at risk here and given the fact that we apparently reached a different conclusion during the START I treaty implementation phase when the side agreement was negotiated with the then-Soviet Union.
So I don't think it would delay anything. We do posit it as a side agreement rather than an amendment. We just say that the administration should negotiate so that there wouldn't be a significant number of SLCM deployments by the Russians given the fact that we are not doing any.
I do have to say that I fundamentally disagree with the assertion of my colleague that this kind of weapon can't upset the strategic balance. If you have a weapon that can fly over 3,000 miles with a nuclear warhead, which could be just as big of a nuclear warhead as on a bomber or an intercontinental ballistic missile, with all of the targets on our eastern seaboard or western seaboard that would be held at risk for such a weapon--in fact, 3,000 miles--you won't have to be far off either of our two U.S. coasts to hit most targets within the continental United States.
This is a weapon that it seems to me we should be concerned about. Therefore, I urge my colleagues to support calling for a side agreement that would deal with the SLCMs just as we did under the START I treaty.
I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
The PRESIDING OFFICER. The Senator from Maryland is recognized.
Mr. CARDIN. Mr. President, I say to Senator Kyl, these missiles are not strategic. Do they affect our strategic balance? I say that everything in our defense toolbox can affect our strategic balance. That was taken into consideration in the negotiations. I thank him for bringing this issue to our attention, but for the reasons we have stated, we urge our colleagues to reject the amendment.
We are prepared to go to the Senator's next amendment if he is prepared to go forward.
Mr. KYL. Mr. President, I will respond with about 30 seconds. Then I will be prepared to go to my next amendment. Perhaps I can reserve whatever time I have left on there to make a closing argument.
I really do sincerely appreciate the characterization of these issues we have raised as serious and important. I do appreciate that. I do think, though, that it would be appropriate to have a better response than just that this will upset the Russians, they won't want to do it, so we will have to renegotiate the treaty, and that it will delay things and that will create problems.
The purpose is not to delay, as I said. I don't think the START I treaty was delayed when we reached a side agreement.
I think, in any event, the question is this: Should the United States delay, if that is what is called for, in order to improve the treaty in important respects? If it is conceded that this is an important aspect, then it seems to me that it is worth taking time to do it right.
Most of the arguments that have been made in response to the amendments we have raised boil down to: The Russians won't want to do what you say, and therefore we need to reject your amendment because it would require some renegotiation. I get back to the point I have made over and over: Then what is the Senate doing here? Why would the Founders have suggested we should have a role in relation to treaties if every time we try to change something, the argument is that you cannot change a comma because the other side wouldn't like that and that would require renegotiation?
There is nothing that serious about this treaty that it has to go into effect tomorrow. The Washington Post had an editorial, and they said that no great calamity will befall the United States if this treaty is not concluded before the end of the year. I think that is almost a direct quotation. There is no immediate national security reason to do so. I know the administration would like to get on with it, but no great harm will befall us if we take time to do it right. If we are not willing to do that, the Senate might as well rubberstamp what the President sends up because the argument will be that if we try to suggest changes, the other side will reject them and we could not possibly abide that.
I will reserve the remainder of time on this amendment
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Mr. KYL. Mr. President, I would have preferred to deal with each of the subjects in this amendment individually because each one is very important. To accommodate the other side's desire to try to get as much done as quickly as possible, we consolidated some amendments, and there is a lot in this. I regret that we don't have time to get into detail about each one of them.
This amendment amounts to an effort to try to improve the verification of the treaty to deal with a variety of issues which have been raised in the past and which we believe are inadequately dealt with by the treaty. One of them involves covers, the kinds of things the then-Soviet Union and now Russians consistently put over the warheads so that it is impossible for our inspectors to see what is under them, to see how many warheads are under them. That has been a problem in the past.
On telemetry, we say the President should certify to the Senate that he has reached a legally binding agreement with the Russian Federation so that each party is obliged to provide full and unimpeded access to its telemetry from all flight tests of strategic missiles limited by the treaty. That is important because while we are not developing a new generation of missiles, the Russians are. We will be denied the telemetry of those missile tests if the Russians decide to deny it. Our intelligence community has told us that this is of great value to us in assessing the capabilities of Russian missiles. Under the treaty, they don't have to provide anything. They could provide telemetry on old missiles they are testing, and they don't have to provide any on any of the new missiles they are testing. We believe that should be done. The same thing with respect to any ballistic missiles deployed during the duration of the treaty.
Then we turn to the subject of inspections. There are different kinds of inspections, but we are talking here about type one inspections in which we say that the United States would consider it a violation of the deployed warhead limit and a material breach of the treaty if the Russians do one of two things: No. 1, any type one inspection that revealed that the Russian Federation had deployed a number of warheads on any one missile in excess of the number they declared for that missile; No. 2, any action by the Russian Federation that impedes the ability of the United States to determine the number of warheads deployed on any one missile prior to or during a type one inspection.
That gets to the issue of covers again. Why is this important? Because we are supposedly counting weapons in this treaty, warheads. There is a limit of 1,550 warheads. How can we possibly verify compliance if, when we seek to count the number of warheads on top of missiles we have designated and have a right to inspect, we can't count the warheads? You tell me how we are supposed to assume how many warheads there are on the top of that particular missile or why we should not deem it a material breach if they declared a certain number of warheads and it turns out there are more.
I think these are commonsense changes that would strengthen the verification provisions of the treaty.
It is too bad Senator Bond is not here tonight. He is the ranking Republican member of the Intelligence Committee. In the classified session we had yesterday, he talked about the deficiencies in verification under this treaty. This subject doesn't permit us to get into a lot of detail in open session.
We have heard a lot about past cheating by the Russians and the kinds of things that were done. What we are trying to do with these basic components is to make it less likely that the Russians would cheat, and if they do, it would less likely have an impact on the key element of the treaty, which is the limitation on warheads of 1,550.
I will note a couple of things here that put this into context.
There have been allegations that there is better verification than ever before under this treaty. That is just not true. The verification provisions of this treaty are not as strong as under the START I treaty. There is an argument that they don't need to be for various reasons or the Russians weren't willing to allow them to be for various reasons. I don't think you can say the verification is better.
Former Secretary of State James Baker, who testified, said:
The verification mechanism in the New START Treaty does not appear as rigorous or extensive as the one that verified the numerous and diverse treaty obligations and prohibitions under START I. This complex part of the treaty is even more crucial when fewer deployed nuclear warheads are allowed than were allowed in the past.
That is obvious. The more you get down to a smaller number, the more important cheating is, the more dramatic the effect can be, and the better verification you need.
Senator McCain said this:
The New START Treaty's permissive approach to verification will result in less transparency and create additional challenges for our ability to monitor Russia's current and future capabilities.
Former CIA Director James Woolsey said:
New START's verification provisions will provide little or no help in detecting illegal activity at locations the Russians fail to declare, are off-limits to U.S. inspectors, or are underground or otherwise hidden from our satellites.
Senator Bond made a comment that I have quoted before, which is this:
New START suffers from fundamental verification flaws that no amount of tinkering around the edges can fix. ..... The Select Committee on Intelligence has been looking at this issue closely over the past several months. ..... There is no doubt in my mind that the United States cannot reliably verify the treaty's 1,550 limit on deployed warheads.
To conclude, the amendment would require the President to certify that he has reached an agreement with Russia on the nonuse of covers that interfere with type one inspections and accurate warhead counting during those inspections. It doesn't solve the problem of determining the total number of warheads Russia deploys, but it would reduce a method of deception Russia has used in the past.
On telemetry, the amendment would require the President to certify that he has reached a legally binding agreement with Russia that each party is obliged to provide the other full and unimpeded access to its telemetry from all flight tests of strategic missiles, including on new ballistic missile systems deployed by the Russians. They are free now to encrypt those tests. That makes it much harder to get information we have found to be very valuable.
Finally, with regard to the material breach, the amendment contains an understanding that the United States would consider a violation of the deployed warhead limits to be a material breach of the treaty. This would include any type one inspection that revealed the Russians had deployed a number of warheads on any one missile in excess of the number they declared for that missile or that they continued to use covers that deny us the ability to see exactly how many warheads they have on their missiles.
Mr. President, I hope my colleagues would recognize that verification is a problem under the treaty. This is a modest way to try to deal with specific aspects of that verification. I hope my colleagues would be willing to support the amendment.
I reserve the remainder of my time.
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Mr. KYL. Might I inquire how much time remains on this side?
The PRESIDING OFFICER. There is 7 minutes remaining.
Mr. KYL. Mr. President, let me take 3, 4, 5 of those minutes. I appreciate my colleagues' compliments about important issues being brought up, and I also appreciate their concern that amendments of this significance would cause heartburn for the Russians and might well require them to want to renegotiate aspects of the treaty. I am trying to address that through the mechanism of the side agreement rather than amendment to the treaty or some kind of other more restrictive method. I thought that would be the preferable way to do it.
It is not my intention, as with the previous amendment, to delay things. I do not think it necessarily would. But I do appreciate that on a couple of these items the Russians would not likely want to renegotiate.
I am not so sure that would be the case with regard to the covers, this question of the kind of shroud or cover you put over the missile bus, the top of the missile that has the warheads since the treaty does deal with it, as my colleagues have pointed out, but I do not think it does so in a conclusive way.
The 2005 compliance report issued by the State Department to discuss compliance of the Russian Government with respect to the START I treaty had a couple of longstanding issues. The issue of shrouds was one that they characterized as of long standing. They had a very hard time getting that resolved with the Russians. In the end, there was a particular accommodation reached, but it took forever. And during that time, we did not have the kind of satisfaction we wanted.
We asked how disputes would be dealt with, and we get the same basic answer. That would go to the Bilateral Consultative Commission, the group of Russian and U.S. negotiators who are supposed to work these things out.
What I can see is a kind of repeat of what we had before. They like to cover these things up and that does not seem to me the way to enter into a treaty where we are supposed to be in agreement with our counterparts and yet we have unresolved issues we have to leave to another day to be resolved through a long and probably difficult negotiation process.
Also, my colleague from Massachusetts--these were his words; he was not quoting anyone--thought we had enormous certainty about this. I suggest I do not think the intelligence community would use a phrase such as ``enormous certainty.'' We cannot get into here the degree of percentage they attach to being able to know certain things under this treaty.
Suffice it to say that we are not absolutely sure we can do what needs to be done here, and I do not think characterizing it as ``enormous certainty'' would be an accurate way to do it.
Let me mention with regard to telemetry--first of all, let me correct one thing that is a little bit of misdirection and then agree with my colleagues on something else.
There is a suggestion that we can get telemetry on five missiles, and that is true if the Russians agree. In other words, they have to volunteer to do it. The five missiles they tell us about can be old missiles. They do not have to be new missiles. It is a fact there is nothing in this treaty that requires the Russians or the United States to exchange telemetry on new missile tests; that is to say, tests of missiles currently being developed. There are at least two the Russians are developing right now.
That leads to the second point. I think it is probably true the reason they did not want to agree to this is it would require them to give us very valuable information. Right now, they would not be getting any information from the United States because we are not testing missiles. But I ask, is that an asymmetry that is justified or that justifies a provision that says if you are not modernizing your forces and we are modernizing our forces, it is not fair to have us tell you what our missiles are like?
Under the previous treaty, both sides had to do that, and it gave both sides more confidence. The Russians are developing new missiles. Should we not have some understanding of the capability of those missiles? We are not developing any. It is almost as if the United States would have to be modernizing its forces too in order to be able to justify a provision that said we had to exchange telemetry.
Maybe the United States ought to get on with the modernization of our missile force so we can then go back to the Russians and say: You are modernizing, we are modernizing, now how about the exchange. To me that is not an argument to require the Russians not to provide us information. And in fact, when the shoe is on the other foot, that argument falls by the wayside, and we end up putting limitations in the treaty.
Here is an example. The Russians are not developing and do not seem to have any intention of developing something called conventional Prompt Global Strike, which is a fancy way of saying: Put a conventional warhead on top of an ICBM so you do not have to send a nuclear warhead halfway around the world to destroy a target.
We can see in today's conflict that we are not going to be engaging in a multiple nuclear exchange with another country but might well have a need based upon intelligence that does not have a very long shelf life that we want to send a conventional warhead to a specific target and that is something we would like to develop but the Russians are not interested in doing that.
So did we say to the Russians: So because you are not doing it and we are, therefore, we are not going to have any limitation on this? No. We agreed, in fact, to a very important limitation. Any missiles we use in that regard have to be counted as if there were a nuclear warhead on top of it. So there is a 700-vehicle limit. That is all the number of missiles we can have. And yet any missiles that we put a conventional warhead on that have this ICBM range have to be counted against that limit.
Well, the Russians aren't doing it, so why did we have to agree to something they are not doing? That is asymmetrical. That is not parity.
So it is okay for the Russians to say: Hey, if we are doing something you are not doing, we are not going to be bound by anything in the treaty on it. But by the way, if you are doing something we are not doing, we are going to hold you accountable and bind you with a very important limitation in the treaty.
You see, the argument doesn't hold water. Russia and the United States are not acting exactly the same with regard to our weapons. So to argue that anything we are doing differently from the other shouldn't count in the treaty is suspicious. And, in any event, it turns out we don't make that argument.
The PRESIDING OFFICER. The Senator's time on this amendment has expired. The Senator has time remaining on the previous amendment.
Mr. KYL. Let me finish my sentence on this.
In any event, what is good for the goose is good for the gander. If we put a limitation on the United States on something they are not developing, then it is only fair to put a limitation on them with regard to something we are not developing.
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Mr. KYL. Mr. President, I wish to speak briefly to that now, in direct response to my colleague from Michigan.
Mr. KERRY. Mr. President, before he does that, do we have time remaining on either of those amendments?
The PRESIDING OFFICER. The Senator from Massachusetts has time remaining on both amendments.
Mr. KERRY. I thank the Chair.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, let me quote from the START I treaty, Text of Resolution of Advice and Consent to Ratification as Approved by the Senate:
The Senate's advice and consent to the ratification of the START Treaty is subject to the following conditions, which shall be binding upon the President: Legal and Political Obligations of U.S.S.R.: That the legal and political obligations of the Union of Soviet Socialist Republics reflected in the four related separate agreements, seven legally binding letters, four areas of correspondence, two politically binding declarations, thirteen joint statements .....
And so on. The two politically binding declarations are precisely the reference to the limitation of the SLCM numbers for both countries. I mean there is a dispute about whether it is legally binding in the same sense that the treaty itself is, but the heading of this is Legal and Political Obligations of the U.S.S.R., and it goes on to talk about .....
The United States shall regard actions inconsistent with these legal obligations as equivalent under international law to actions inconsistent with the START Treaty.
And so on and so on. We believe these were binding and should be. It is no argument, however, to say that if somebody else didn't see it that way, therefore, what we are asking for here is not a binding agreement. Whether you call it binding legally or binding politically, in any event, I wish to see it done, because there is no limitation on the SLCMs the Russians are planning to develop, and the submarine that is under development to carry them, and they could have a strategic value as well as a tactical value. They were a subject of the previous START I agreement and I think they should be a subject of this agreement as well.
Let me summarize. The first amendment our colleagues will be voting on is, I believe, the Wicker amendment, and then the second amendment is the amendment which would provide a side agreement for a limitation on the number of Russian SLCMs--the submarine launch cruise missiles--and the third vote will be on the Kyl amendment relative to verification relating to covers on the ICBMs and telemetry on ICBM tests
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