Commentary—

The Senate’s Quiet Struggle With The Pentagon

By Daniel M. Smith

Public opinion polls habitually give Congress poor ratings for job performance. Well, maybe, but it’s more complicated than it looks, at least for the Senate. Why? Because in addition to voting on domestic laws, the Senate has the constitutional duty to give its “advice and consent” on treaties submitted to it by the President.

It’s important to keep in mind that the Senate must wait for a President to send treaties to it; if a President is a unilateralist, he might not enter into many treaties. George W. Bush, for example, submitted to each of the four congresses that served with him about 23 treaties. Bill Clinton was always above 40, and in his second term sent each Congress more than 50.

As on other legislation, the Senate may consent or demur — treaties require a super majority of 67 votes to pass. Sounds straightforward, but this Congress apparently has studied this President and devised its equivalent of a presidential “signing statement” that nullifies what it has just approved.

On September 26, 2008, the Senate, with little debate and no fanfare, consented to three protocols to the “Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects” — the Convention on Conventional Weapons (CCW) for short.

That convention, with three protocols, was completed in October 1980 and went to the Senate for its consent in March 1995. But in his letter of transmittal to the Senate, President Clinton recommended the Senate not consent to Protocol III — the “Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons.” (The other protocols dealt with “Non-Detectable Fragments” — Protocol I — and “Mines, Booby-Traps, and Other Devices” — Protocol II — and were accepted.)

Incendiaries are defined as weapons whose primary purpose is to destroy by heat/fire. Such weapons were used in World War II when German, Japanese, and British cities were attacked. In Vietnam, napalm — a very fine mist of jet fuel that ignites when in contact with air — was used extensively.

But it was not the horrendous suffering of those who might be caught in an incendiary attack that was of concern to the Pentagon — hence the president’s opposition to Protocol III. Remember the context: this was the period in which the UN Special Commission was in Iraq looking for Saddam Hussein’s ballistic missile and nuclear, chemical, and biological weapons. The Pentagon did not want to relinquish incendiaries because these were the only weapons capable of destroying — again by the very high temperatures generated — biological toxins. And despite the fact that no biological weapons program had been uncovered in the previous four years of UN inspections, the Pentagon was still convinced that Iraq was working on biological weapons.

This September the Senate brought up Protocol III again and two new protocols: “Blinding Laser Weapons” (Protocol IV) and “Explosive Remnants of War” (Protocol V). The two new protocols went forward with no reservations — the equivalent of a presidential signing statement. The Senate then consented to Protocol III, only to add a reservation that nullified its effect.

Under the Senate action, the US still claims the right to use incendiaries against military targets located in areas of civilian concentrations if the commander believes there will be fewer civilian deaths using the incendiaries rather than other means of attack. The supposition here is that the only alternative to incendiaries are dumb high explosive munitions.

Back in 1980, the Pentagon didn’t have precision weapons. Thus to destroy military targets that purposely had been located in built-up civilian areas (a violation of the law of land warfare) would require large quantities of dumb bombs that more likely than not would cause high civilian casualties (not to mention repeatedly putting US pilots at risk).

But this is 2008. The Pentagon boasts of the pinpoint accuracy of its precision missiles and bombs. In this day and age, incendiaries can be presumed from the start to cause more civilian casualties when used in civilian areas. If this isn’t true, one must then wonder just how precise these “precision weapons” really are.

(Colonel Daniel M. Smith (Ret), a West Point graduate and Vietnam veteran, is the Senior Fellow for Military Affairs at the Friend Committee on National Legislation. FCNL is a Quaker-based public interest lobby founded in 1943. FCNL is headquartered in Washington, D.C.)