- The Washington Times - Monday, October 10, 2005

Sen. Jesse Helms once famously complained the problem with the State Department is simple. With all its “country desks” (whose job usually seems to be to represent the interests of their respective nations during U.S. policymaking deliberations), the department is missing one: the American desk. As a result, the view from Foggy Bottom is all too often not what is best for the U.S. but what will maintain cordial relations with other countries, generally on their terms.

Well, we could sure use an American desk at the State Department right now. In its absence, unless President Bush gets personally involved, the department’s lawyers representing the strongly held views of some foreign governments will get some U.S. GIs killed, and probably compel them unnecessarily to kill Iraqis, and perhaps others, in this War for the Free World.

Here’s the background. In the early 1990s, Mr. Bush’s father decided he would rid the world of all chemical weapons. The result was the 1992 Chemical Weapons Convention (CWC) that purported to do just that. Even its supporters acknowledged the CWC was unverifiable and unlikely to be faithfully followed by all its parties (notably, the Russians and Chinese) — to say nothing of nations like Saddam Hussein’s Iraq who didn’t sign.

Still, President George H.W. Bush wanted such a treaty. So the rest of the government went along, including the U.S. military. It was only too happy to get rid of a vast stockpile of obsolete, largely unusable and increasingly dangerous chemical munitions on the pretext our potential foes would not have them, either.

While the armed services were willing to go that far, there was a show-stopper as far as they were concerned. They balked at the insistence of some negotiating partners (including some of our European allies) that the Chemical Weapons Convention had to ban use of riot control agents (RCAs), as well. That is a fancy term for nonlethal substances like tear gas.

Now, police forces all across America wouldn’t dream of being without tear gas, pepper spray and the like. They understand such agents can enable the authorities to control an ugly situation with minimal violence. In their absence, lethal force might have to be used in cases where it would not only be undesirable, but possibly highly counterproductive.

Such products have also long been marketed to consumers in this country for personal protection. Communities that do not allow their residents to carry guns recognize that little canisters of these nonlethal agents are legitimate means of self-defense. They are sufficiently domesticated you can buy ones that can be clipped onto a key chain or put in a purse.

Just don’t try putting their military counterpart in the kit bags of our troops in dangerous places like Iraq or Afghanistan. Why? Because the U.S. State Department has decided our forces using RCAs in the field would violate the 1992 Chemical Weapons Convention.

Never mind that the then-Chairman of the Joint Chiefs of Staff, Gen. Colin Powell — who subsequently would, himself, push cookies at the State Department for the incumbent President Bush — laid down the law to the elder President Bush: In 1992, as the CWC was being negotiated, Gen. Powell declared: “Non-lethal riot control agents provide a morally correct option to achieve defensive military objectives without having to resort to the unnecessary loss of innocent lives. Sacrificing such an option would be an unacceptable price to pay for a CW treaty.”

This position was formally endorsed by the first President Bush. Even though the Convention prohibits “use of riot control agents as a method of warfare,” George Herbert Walker Bush made clear he interpreted that obligation to be consistent with then-existing U.S. policy dating back to the Ford administration, which permitted the defensive use of RCAs in four different contexts “to save lives.”

It is instructive to see what the State Department lawyers now argue our troops can’t do, despite the following applications approved in President Ford’s Executive Order 11850:

“(a) Use of riot control agents in riot control situations in areas under direct and distinct U.S. military control, to include controlling rioting prisoners of war.

“(b) Use of riot control agents in situations in which civilians are used to mask or screen attacks and civilian casualties can be reduced or avoided.

“(c) Use of riot control agents in rescue missions in remotely isolated areas, of downed aircrews and passengers, and escaping prisoners.

“(d) Use of riot control agents in rear echelon areas outside the zone of immediate combat to protect convoys from civil disturbances, terrorists and paramilitary organizations.”

In due course, Bill Clinton accepted this formulation as well when it became a non-negotiable Senate precondition for approval of the CWC. And it was enshrined in the resolution of ratification that body ultimately adopted.

Never mind. The American-desk-free State Department insists the U.S. military use of RCAs would violate the Chemical Weapons Convention. As a result, the military is not using them. And State’s lawyers are adamantly resisting executive or legislative branch efforts (the latter well led by Sen. John Ensign, Nevada Republican) that would prove them dead wrong.

The question is: How many GIs or Iraqi citizens must die unnecessarily because the riot control agents that might have saved their lives couldn’t be used thanks to some out-of-control State Department lawyers?

Frank J. Gaffney Jr. is a columnist for The Washington Times and lead author of the forthcoming book, “War Footing: Ten Steps America Must Take to Survive and Prevail in the War for the Free World.”

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