21 June 1997 Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html ------------------------------------------------------------------------- [Congressional Record: June 19, 1997 (Senate)] [Page S5978-S5998] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr19jn97-172] NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1998 Mr. LOTT. Mr. President, I am very pleased to be able to ask unanimous consent that the Senate now turn to the consideration of Calendar No. 88, S. 936, the Department of Defense authorization bill. The PRESIDING OFFICER. Without objection, it is so ordered. The clerk will report. The assistant legislative clerk read as follows: A bill (S. 936) to authorize appropriations for fiscal year 1998 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe personnel strengths for such fiscal year for the Armed Forces, and for other purposes. ***** Amendment No. 420 (Purpose: To require a license to export computers with composite theoretical performance equal to or greater than 2,000 million theoretical operations per second) Mr. COCHRAN. Mr. President, I send an amendment to the desk for myself and Mr. Durbin. The PRESIDING OFFICER. The clerk will report. The assistant legislative clerk read as follows: The Senator from Mississippi [Mr. Cochran], for himself and Mr. Durbin, proposes an amendment numbered 420. Mr. COCHRAN. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: At the end of subtitle E of title X, add the following: SEC. . SUPERCOMPUTER EXPORT CONTROL. (a) Export Licensing Without Regard to End-Use and End- User.-- (1) In general.--Notwithstanding any other provision of law, effective upon the date of enactment of this Act, computers described in paragraph (2) shall only be exported to a Computer Tier 3 country pursuant to an export license issued by the Secretary of Commerce. (2) Computers described.--A computer described in this paragraph is a computer with a composite theoretical performance equal to or greater than 2,000 million theoretical operations per second. (b) Limitation on Reexport.--It is the sense of the Senate that Congress should enact legislation to require that any computer described in subsection (a)(2) that is exported to a Computer Tier 1 or Computer Tier 2 country shall only be reexported to a Computer Tier 3 country (or, in the case of a computer exported to a Computer Tier 3 country pursuant to subsection (a), reexported to another Computer Tier 3 country) pursuant to an export license approved by the Secretary of Commerce and that the preceding requirement be included as a provision in the contract of sale of any such computer to a Computer Tier 1, Computer Tier 2, or Computer Tier 3 country. (3) Computer Tiers Defined.--In this section, the terms ``Computer Tier 1'', ``Computer Tier 2'', and ``Computer Tier 3'' have [[Page S5992]] the meanings given such terms in section 740.7 of title 15, Code of Federal Regulations. Mr. COCHRAN. Mr. President, on the 11th of June, my Subcommittee on International Security, Proliferation, and Federal Services of the Committee on Governmental Affairs held a hearing on the subject of proliferation and U.S. dual-use export controls. The hearing focused almost entirely on the subject of U.S. exports of high-performance computers, also known as supercomputers. In preparing for and conducting this hearing, we learned that the administration's policy on supercomputers, which are an integral component for developing, producing and maintaining nuclear weapons, ballistic missiles, and practically all advanced weapon systems, could put American lives and interests at risk. I am offering this amendment as a necessary first step to staunch the flow of American-made supercomputers to countries and places they should not be going. On October 6, 1995, President Clinton announced a new export control policy for supercomputers which decontrolled supercomputer exports to a great extent. He said that he had ``decided to eliminate controls on the exports of all computers to countries in North America, most of Europe, and parts of Asia.'' Continuing further, ``For the former Soviet Union, China, and a number of other countries, we will focus our controls on computers intended for military end uses or users, while easing them on the export of computers to civilian customers.'' There is, of course, a delicate balance that must be struck between presenting U.S. national security by controlling dual-use exports and promoting exports. We must be careful not to place American manufacturers in a position where they cannot export goods that other countries are exporting, though, of course, our national security interests dictate that some goods cannot be sold to some countries no matter how irresponsibly other countries behave. For example, the willingness of some Western European countries to work with Libya to construct a chemical weapons complex does not justify the involvement of United States companies in similar ventures. President Clinton's October 6, 1995, announcement liberalizing U.S. export controls on supercomputers established four country tiers to guide American exporters, at the same time eliminating restrictions on the export of computers capable of less than 2,000 million theoretical operations per second-- this is referred to as an MTOPS--for all except tier 4 countries, it is unrestricted if the computers are capable of less than 2,000 MTOPS. Whether it makes sense to decontrol computers capable of up to that level is one of the issues which should be studied more extensively. I will ask the General Accounting Office to do so. Country tier 1, consisting primarily of NATO allies, effectively establishes a license-free zone for U.S. high-performance computer exports. Computers of unlimited capacity under this policy can be exported to any tier 1 country without regard to the identity of the end user or the intended end use. The policy for country tier 2, which includes countries such as South Korea, Hungary, Poland, and the Czech Republic, allows unlicensed exports to any country within this tier of computers capable up to 10,000 million theoretical operations per second. And the policy continues the virtual embargo against those nations--the terrorist nations such as Iran, Iraq, Syria, and North Korea--that comprise country tier 4. There are many deficiencies in this new policy, Mr. President. Our amendment addresses what we consider to be the most significant deficiency in need of immediate attention. It is a problem specific to the part of the policy pertaining to country tier 3 which I want to describe now. The policy announced by President Clinton for tier 3 countries, which include Russia, China, and some others, is based entirely upon the questions of who the end user will be and for what end use the supercomputer is intended. End use and end user are the critical factors for tier 3 exports. The tier 3 policy requires an export license to be granted by the Department of Commerce under only two circumstances: First, if the computer to be exported is capable of 2,000 MTOPS and is going to a military end use or end user; and second, if the computer to be exported is capable of 7,000 MTOPS and is going to a civilian end use and end user. This policy requires no export license for manufacturers who want to sell supercomputers capable between 2,000 and 7,000 MTOPS to buyers in tier 3 countries when there is to be a civilian end use and end user. It is the exporter--not the Department of Commerce, not the U.S. Government--who is given the latitude under the policy for determining whether the purchaser's representations are accurate, that it is not a military end user and will not use the supercomputer for a military purpose. The Clinton administration policy further requires American exporters to act on the honor system, policing themselves and deciding themselves whether or not the end user is going to be a military entity or will be putting the supercomputer to a military use. Unfortunately, some companies have already been tempted to take a chance. Maybe they were not sure; maybe they were tempted by the profits of the transaction. Whatever the motivations and the understandings or lack of information, or for whatever the reason, we have known that some transactions have involved the sale of supercomputers, without objection from our Department of Commerce or our Federal Government to those who may be putting computers to a military use, or maybe military entities themselves. We know now, for example, based on statements from the Russian Minister of Atomic Energy and from United States Government officials, that there are at least five American supercomputers in two of Russia's nuclear weapons labs: Chelyabinsk-70 and Arzamas-16. Minister Mikhailov of the Russian Ministry of Atomic Energy has not been reluctant to proclaim what these high-performance computers will be used for, and he said in a speech in January they will be used to simulate nuclear explosions, and that the computers are, in his words, ``10 times faster than any previously available in Russia.'' Four of the five supercomputers we are aware of publicly in Russia's nuclear weapons labs came from Silicon Graphics, a company in California, I think. According to the CEO, Edward McCracken, it was his company's understanding that the computers were for environmental and ecological purposes. It may be that Silicon Graphics was unable to determine whether a Russian nuclear weapons lab was going to be the military end user or if its supercomputers would be put to a military end use. But it seems from the statements made by the Atomic Energy Minister in Russia that they certainly are available to them for those purposes. We also know at least 47 high-performance computers have been exported without licenses to the People's Republic of China. One of the computers sold also by Silicon Graphics is now operating in the Chinese Academy of Sciences. The Chinese Academy of Sciences is a key participant in military research and development, and works on everything from the DF-5 ICBM--which, incidentally, is capable of reaching the United States--to uranium enrichment for nuclear weapons. There can be no question about the Chinese Academy of Science's status as a military end- user. According to the Department, its new Silicon Graphic Power Challenge XL supercomputer provides it with computational power previously unknown, which is available to all the major scientific and technological institutes across China. We can only hope that some of these institutes in China are using the supercomputer's technology for peaceful purposes, but we cannot help but suspect that some may be a part of the weapons development program in China, which is on a fast track to modernize their nuclear weapons system and capabilities and their missile technologies and all the rest. At our recent hearing, we had the benefit of testimony from the Under Secretary of Commerce for Export Administration, William Reinsch, who said that the Clinton administration doesn't know if any of the supercomputers in China or Russia are being used for weapons-related activities, but the Commerce Department is in a difficult position. You have to appreciate how difficult it must be to have the responsibility for both promoting exports [[Page S5993]] and controlling exports, and that is the dilemma that this Department is in. But we have to realize that nuclear weapons labs are potential end users and have been shown already by the evidence before our committee that they have obtained American supercomputers and they may be put to a military end use. In 1986, the Department of Energy published an unclassified report entitled, ``The Need for Supercomputers in Nuclear Weapons Design.'' The report's conclusion included this statement: ``The use of high- speed computers and mathematical models to simulate complex physical processes has been and continues to be the cornerstone of the nuclear weapons design program.'' These computers continue to be important to the design and production of nuclear weapons and other types of weapons of mass destruction and delivery systems. I do not see how we can tolerate the continuation of a policy that makes it easier for Russia and China to modernize their nuclear weapons and delivery systems. We ought not to be in the business of helping them to improve the quality of our weapons, their technology, their delivery systems, particularly when there is evidence of proliferation from those countries to other countries. This amendment, I want to point out, does not include a comprehensive revision of our export control policy. It is targeted to one specific part of the policy. We hope that with the findings that are obtained from the General Accounting Office study and our further studies in our subcommittee, which is reviewing this entire issue and proliferation problems generally, that we will be able to come up with and work with the administration and hopefully develop a consensus agreement on a modification of our export policy. We think the time is here, it is now, when we need to stop the unrestricted flow of these supercomputers to potential users all around the world that can threaten our Nation's security and put at risk American citizens. It is not like some other country has these systems available for sale on the market. They do not. We are the state-of-the- art producer of the supercomputers. Japan has the capacity to produce supercomputers as well, but their export policy is more restrictive now than ours is. So we are the culprit, if we are putting in the hand of military end users and military weapon system producers in other countries technologies that are superior to what they have now and that can be used to make more lethal their nuclear weapons and their missile systems. We are putting in jeopardy the lives of our own citizens. I am hopeful that this amendment, in concert with other efforts that we are making, will help improve our capacity to monitor these exports and require license in those situations where we think this export might present a proliferation problem, because we know from previous experience in Russia and China, as well, private companies have demonstrated that they do not have the adequate restraints to make determinations about where and how their exports are distributed into other country's hands. We know that transshipments are occurring. We also know that it is difficult to verify in a country like China what the private company that may be the purchaser of a supercomputer really intends to do with it once they have it. It is difficult to get access, to get information, and so a private company has a very difficult time developing an information base on which it can really make a conclusion about the end use or the end user. That is another reason to change this policy. The Commerce Department is going to have to do a better job of compiling information about those who are in the market worldwide for these supercomputers and making this information available to our exporters and the companies that have these supercomputers for sale. Mr. President, I encourage the Senate to look very carefully at this proposal. I hope that the amendment will be agreed to. Senator Durbin and I were involved in questioning witnesses before our subcommittee just recently on this subject, and we are convinced that this is a policy that has to be changed, and the time to change it is right now. Our amendment does not in any way change the policy President Clinton announced in October 1995, though it is my judgment that the entire policy is in need of serious evaluation and revision, and I will also be asking the General Accounting Office to assist me in this evaluation. Our amendment requires the Department of Commerce, in concert with other parts of the executive branch, to determine whether an entity in a tier 3 country is a military or civilian end-user, and whether the end-use will be for a military or civilian purpose. By their exports to Russian and Chinese nuclear weapons labs, private companies have demonstrated that they do not do an adequate job of making this determination. Government has the resources and information available to make the best determination possible, and should step in to ensure that America's national security is not being compromised for sake of a more profitable quarter. In a country like the People's Republic of China, how can any private company have the resources to determine whether an end-user is military or civilian? Some suggest that the process can be left unchanged, but that the Commerce Department can do a better job of helping industry make the proper end-use and end-user determination by publishing a list of end- users to which high performance computer exports are prohibited. I disagree with this suggestion. Any published list would necessarily be incomplete, for a complete list would compromise U.S. intelligence sources and methods. Any published list would also serve as a marketing tool for the world's proliferators, making their job of finding specific clients easier. And, any published list would be only too easy to manipulate by both the purchaser and the exporter who may not be willing to operate under the honor system. If, for example, Chelyabinsk-70 is on the list of prohibited locations, does that mean that a Chelyabinsk-71, not on the list, can receive U.S. exports of high performance computers? What's to stop an exporter like Silicon Graphics from accepting the convenient suggestion that, ``yes, Chelyabinsk-70 does nuclear weapons work, but at Chelyabinsk-71 we conduct only environmental research.'' Publishing a list could reduce, but not eliminate, the problem we face, though in so doing other serious problems would be created. Congress needs to change the current process so the Government--with the most access to information with which to make the most informed determination of military end-use and end-user--makes the decision on whether to ship these computers to countries who are modernizing their weapons and delivery systems and engaged in proliferation of these technologies. America should not be participating in the qualitative upgrade of Russian and Chinese proliferant activities. The Commerce Department maintains that President Clinton's supercomputer export control policy is working. Commerce continues to make this claim despite the fact that the administration's policy has allowed American supercomputers to be shipped to Russia's and China's nuclear weapons complexes, and who knows where else. If this policy is working, what would a policy that wasn't working look like? Would there be more supercomputers in Russia and China, or would we know absolutely that our supercomputers were in Iran, North Korea, or other terrorist states? The cold war's end does not decrease the need for the continued safeguarding of sensitive American dual-use technology. While there may no longer be a single, overarching enemy of the United States, there is little doubt that many rogue states, and perhaps others, have interests clearly contrary to those of the United States. Helping these nations-- or helping other nations to help these nations--to acquire sensitive dual-use technology capable of threatening American lives and interests makes no sense. I thank Senator Durbin for his work with me on this issue, and look forward to continuing to work with him to get to the bottom of this problem. I encourage all of my colleagues to support this amendment. Mr. DURBIN addressed the Chair. The PRESIDING OFFICER (Mr. Bennett). The Senator from Illinois is recognized. [[Page S5994]] Privilege of the Floor Mr. DURBIN. Mr. President, first, I ask unanimous consent that the privilege of the floor be granted to Lamelle Rawlins during the pendency of this debate. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. DURBIN. Mr. President, I am pleased to join my colleague from Mississippi, Senator Cochran, as a cosponsor of this important amendment. I think anyone who had attended our hearing within the last 2 weeks on this issue would have been shocked at what they learned. We have expanded opportunities for the purchase of some of the most valuable technology in the world. It is technology developed in the United States, which has no parallel anywhere else in the world, and we are selling it. The fact that we are selling it is nothing new. The United States has done that for years. But this technology is so important and sensitive that the people who buy it automatically acquire a capacity, a capability that they have never had in their history. In other words, our expertise, our knowledge, our technological skill is being sold. What makes this particularly important is that this very technology has the capacity to give to the purchasing country the skills and abilities that they have never had before to develop things that are very positive, on one hand, but also potentially very negative. I was reminded of a quotation that is attributed to Mr. Lenin in the early days of his establishment of the Soviet republics. He said that it was his belief that ``a capitalist would sell you the rope that you would use to hang him.'' I thought about that over and over, as we discussed this question of selling these computers to countries like China and Russia, which have the capacity to allow them to develop extraordinary military capability. Recent news accounts about sales of supercomputers to Russian nuclear weapons labs and the Chinese Academy of Sciences--in apparent circumvention of United States export control regulations--have raised troubling questions about the control that the United States exercises over supercomputer exports. China has purchased at least 46 United States supercomputers. Of these, 32 are one particular model that is faster than two-thirds of the classified computer systems available to our own Department of Defense, including the United States Naval Underwater Weapons Center, United States Army TACOM, and United States Air Force/National Test Facility. The Commerce Department and the Justice Department are investigating the unlicensed sale--unlicensed sale--of four over-2000 MTOPS computers to the Russian nuclear weapons facility Chelyabinsk-70. The computers recently sold are 10 times more powerful than anything Russia ever had before, and we sold it to them. There is ample room for mistakes and confusion in the current dual- use export control system for supercomputers. According to a New York Times article on February 25 of this year, in an effort to circumvent United States export controls, Russia's nuclear weapons establishment obtained a powerful IBM supercomputer through a European middleman and said they planned to use it to simulate nuclear tests. I was on this floor 2 weeks ago giving a speech about a test ban, recalling the speech given by President Kennedy before American University in 1963. I came to the floor with Senator Harkin and said it is time for us to have a comprehensive nuclear test ban, moving toward the day when there are no nuclear weapons threatening this world. In the world we live in today, you don't need to detonate a nuclear weapon. If you have a supercomputer, which can simulate that detonation, you can derive the same information--or a lot of it-- through this model and through this technology. These are the very same computers and capabilities that we are selling. The Nation's export controls for supercomputers ``amount to a kind of honor system,'' according to one U.S. official quoted in the Wall Street Journal. Companies that have doubt about a customer's activities are expected to call the U.S. Government for advice. Think about that. You have a computer company and you have a sale worth millions of dollars and you don't know whether it is going to be used for a peaceful purpose or a military purpose. Well, the honor system says it is time to call the Department of Commerce and check it out and see if they have any records or classified information. They may not share the information with you, but they may tell you there is some concern. But it is an honor system. There is nothing built into the law to guarantee this kind of surveillance, this kind of supervision. Companies may fail to obtain licenses to sell supercomputers ordered for civilian purposes, such as weather forecasting or air pollution studies or natural resources prospecting and development, but these computers end up in places which do design work for nuclear weapons programs--not a civilian use. Companies may knowingly ignore licensing requirements or, alternatively, companies may unwittingly fail to recognize a suspect end-user. The first step toward better export controls is better communication. Increased accountability and interaction between industry and the Federal Government called for by this amendment will help facilitate that interchange. Even William Reinsch, the Undersecretary for Export Administration for the Commerce Department, quoted by Senator Cochran with whom I share the sponsorship of this amendment, testified at the Governmental Affairs subcommittee hearing last week, agreed that better communication is essential. He invited and encouraged companies to consult with the Commerce Department when faced with challenging sales decisions. The current system for supercomputer exports involves controls on high-power computer exports set forth in Federal regulations that divide the countries of the world into various categories, or tiers. The licensing policies vary depending on which category the country falls into. There are countries for which no export license is required--tier 1--some countries for which licenses are required for extraordinarily high performance machines--tier 2--some for which licenses are required, depending on whether the end-use is military rather than civilian--tier 3--and countries for which sales are totally banned--tier 4. The tier 3 countries include India, Pakistan, all of the Middle East/ Maghreb, the former Soviet Union, China, Vietnam, and the rest of Eastern Europe. Under current rules, export licenses are required to export or re- export computers with a composite theoretical performance, known as CTP, greater than 2000 MTOPS to military end-users and end-uses and to nuclear, chemical, biological, or missile end-users and end-uses in tier 3 countries. However, for civilian end-users or end-uses that don't fall into a military or proliferation category, licenses are not required for export or re-export of computers under 7000 MTOPS to these countries. What this means is that for many sales, no Government oversight or decisionmaking takes place at the front end if the exporter determines that he is selling to a company that portrays itself as a civilian user because no license is required. Because of the differences in the licensing rules that apply to exports for military and proliferation uses than those governing sales for civilian use, the U.S. Government plays no upfront role in determining whether the end-use of a supercomputer under 7000 MTOPS sold to a buyer in a tier 3 country is indeed to be used for a civilian purpose. I know this is involved, I know that it is complicated. Let me try to cut to the bottom line. If a company in the United States seeks to sell a supercomputer, one of great capacity, and the end-user, the company that is buying in another country, says this is strictly for a civilian purpose, it is not going to be used for anything of a military capacity, there are virtually no controls on that sale; nor is there much of anything done to track that sale, once it is made, as to where that computer actually ends up. The responsibility is all on the shoulders of the manufacturer or exporter to make the determination on whether or not a license is needed, whether or not the computer might be used for military purposes. Exporters run the risk [[Page S5995]] of relying on assurances of the purchasers or their own intelligence information about end-use, rather than the resources of the Government. Either intentionally or inadvertently, exporters have made sales to destinations for which a license should have been obtained, because of end-use, but was not. The Cochran-Durbin amendment would require that all U.S. exports of supercomputers above 2,000 million theoretical operations per second--a measure of the computer's speed--to a tier 3 country be licensed by the Commerce Department. The presently more lenient requirements for civilian end-use sales in this category would be made identical to stricter ones applicable to sales for military proliferation purposes. The amendment would shift responsibility from industry to the Government for deciding the propriety and conditions of the sales. By subjecting all such sales above 2,000 MTOPS to licensing requirements, the United States may be able to prevent the uncontrolled flow of technology for unauthorized use or diversion to purchasers in countries who may have vastly different interests than those of the United States. Civilian sales of supercomputers above 2,000 MTOPS to purchasers in tier 3 countries would be reviewed and approved by the Commerce Department, using the same standards used in licensing military and proliferation sales to these countries. In addition, the amendment expresses the sense of the Senate that Congress should enact legislation requiring that any computer exceeding 2,000 MTOPS exported to a tier 1 or tier 2 country shall only be reexported to a tier 3 country, or reexported by a tier 3 country to another tier 3 country, pursuant to an export license approved by the Secretary of Commerce. We are trying to track these computers, once sold, and determine where they are going to end up. We are saying to those countries, whom we consider to be our allies and friends, that we are going to ask you to bear responsibility for the end-use of the computer. We don't want you to be a conduit for the sale of a computer to a country where the United States suspects it may be used for military purposes. The sense of the Senate would call for legislation that would require any reexport to a tier 3 country would have to be done under U.S. export license. This amendment is clearly necessary. I urge my colleagues to join Senator Cochran and myself. If you had listened to the testimony, as we did, you would have discovered, as I did, that there has been a dramatic increase in technology and expertise in this field. It is estimated that every 9 months to a year most of the computers that we are talking about become obsolete and move on to higher standards. The United States is where these computers are made and the country from which they are sold. As we are concerned about the proliferation of those items that can be used for the construction of nuclear, biological, and chemical weapons, we should also be concerned about the potential that we are selling technology that can also be used for proliferation of military weaponry. If we are truly seeking a peaceful world--and we are--the United States should take care not to sell that technology which allows another country to develop weapons of destruction. I think the Cochran-Durbin amendment strikes an appropriate balance. It brings our Government into the decision process. It protects those exporters in the United States who truly are trying to do the right thing and sell for civilian use. But it gives them a backup, and it leaves some assurance that will be another party investigating when it comes to sales of a suspect nature. This amendment is an important step toward addressing some of the growing concerns about U.S. export control policies governing sales of dual-use technology and whether those policies may be permitting access to sophisticated American technology to aid in the buildup of nuclear weapons capability of other countries. Recall the words of Mr. Lenin: ``A capitalist will sell you the rope that you will use to hang him.'' Let's not have that occur. Not in the name of free trade and good commerce should we forget our responsibility to national and world security. I believe the Cochran-Durbin amendment is a sensible and responsible way to bring some order to what is becoming a very chaotic situation. I urge my colleagues to join Senator Cochran and me in support of this amendment. I yield the remainder of my time. Mr. COCHRAN addressed the Chair. The PRESIDING OFFICER. The Senator from Mississippi. Mr. COCHRAN. Mr. President, I commend the distinguished Senator from Illinois for the great force of his argument and for the clarity of his statement in support of this proposal. I ask unanimous consent that the Senator from Michigan [Mr. Abraham] be added as a cosponsor to the amendment. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. COCHRAN. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. WARNER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER (Mr. Enzi). Without objection, it is so ordered. Senate will continue consideration of the bill on Friday, June 20, 1997. ------------------------------------------------------------------------- [Congressional Record: June 20, 1997 (Digest)] [Page D646-D647] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr20jn97-1] Friday, June 20, 1997 Senate ***** DOD Authorizations: Senate continued consideration of S. 936, to authorize appropriations for fiscal year 1998 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, and to prescribe personnel strengths for such fiscal year for the Armed Forces, taking action on amendments proposed thereto, as follows: Pages S6019-24, S6026-27 Pending: Cochran/Durbin Amendment No. 420, to require a license to export computers with composite theoretical performance equal to or greater than 2,000 million theoretical operations per second. Pages S6019-24, S6026 Grams Amendment No. 422 (to Amendment No. 420), to require the Comptroller General of the United States to conduct a study on the availability and potential risks relating to the sale of certain computers. Pages S6022-24, S6026 ------------------------------------------------------------------------- [Congressional Record: June 20, 1997 (Senate)] [Page S6021-S6024] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr20jn97-78] NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1998 The Senate continued with the consideration of the bill. Mr. GRAMS addressed the Chair. The PRESIDING OFFICER. The Senator from Minnesota is recognized. Amendment No. 420 Mr. GRAMS. Madam President, I inquire of the business now before the Senate. The PRESIDING OFFICER. The pending question is on the Cochran amendment No. 420. Mr. GRAMS. Madam President, I rise this morning to strongly oppose the amendment by my colleague and friend from Mississippi, Mr. Cochran, first for jurisdictional reasons, and most importantly because it is a seriously, I believe, flawed policy. As chairman of the International Finance Subcommittee of the Senate Banking Committee, I object to the consideration of this matter, since it is within the jurisdiction of my subcommittee and the Committee on Banking. This is a very controversial issue and it should be heard and debated in the normal congressional process, by the proper committee of jurisdiction, not by a floor amendment with little opportunity for opponents to be heard. Many Members of this body may have already returned to their States and will not even have the opportunity to listen to the debate today. The Senate has not had an opportunity to have a full debate on export controls in the last few years. Members need the benefit of time to fully analyze changes in an area that can have such a negative impact on U.S. companies and on U.S. jobs. What really concerns me, Madam President, is that this amendment turns back the clock on technology. This amendment indicates it is directed at supercomputers, but computers at the 2,000-7,000 MTOPS level are not supercomputers, a point I will discuss later. The amendment reverses 2 years of effort to decontrol computers that are generally available. You will hear all sorts of talk today about how this amendment improves national security. But it does not. If the goal is to stop the sale of high performance computers to questionable end users in Russia, China, India, Pakistan, and Israel, it will stop the sale of United States computers to those end users--but it will not stop our allies from making those sales. It is true that there are two companies currently under investigation for alleged sale without license to a questionable end user. Those investigations are still pending and should be pursued, so it seems premature to, in effect, have the Congress find them guilty. Let us let the process work. If they are guilty, they will be penalized. The U.S. companies selling computers abroad at this level are few; they are reputable and they do care about selling to questionable end users. The investigations have also had a positive effect in that they have encouraged companies to seek more validated licenses for uncertain end users. I disagree with my colleagues who believe businesses care only about the almighty dollar, and not national security. This amendment will bring us back to the cold war days when export controls were required for computers sold in drug stores. A computer at 2,000 MTOPS, which is the level we would control, is a low-end work station which is widely available all over the world. We would establish unilateral controls on any computer over this capability. Our companies would have to [[Page S6022]] obtain a validated license. Their competitors in other nations would not have that requirement. Therefore, European and Japanese companies would have a competitive edge in many, many computer sales in countries where it is important to establish a foothold as a reliable supplier to facilitate future sales. Licenses would be required for every sale above this limit, not just those to questionable end users. We want to expand markets in those countries, while protecting our national security interests, rather than handing them on a silver platter to our trading partners who will then be seen as reliable suppliers in the future. I know the argument will be that it is not hard to get an export license and that there are statutory deadlines on agency review of license applications. I can give you quite a list of companies--many of them smaller companies--which have come close to shutting down due to export license delays, even in recent years. We cannot return to this uncertainty and bureaucratic maze. Even the larger companies will see their expenses increase as they will have to hire more high-priced attorneys to facilitate many of the licenses through the process. Export licenses to these countries do not get approved in a couple of months. Many of them take many months and earn the U.S. the designation as an unreliable supplier. While we are pursuing regulatory reform in many areas, what we are doing here is reimposing regulations we eliminated 2 years ago. What is curious to me is an independent study commissioned in 1995 for the Departments of Commerce and Defense which determined that computers could be decontrolled to the 7,000 MTOPS level without a negative impact on national security. The Departments of State, Defense, Commerce, the intelligence agencies, and ACDA all signed off on this report, and the decontrol was made at that time to 7,000 MTOPS. The determination was made because the 2,000-7,000 range, again, Madam President, was widely available throughout the world. But you have also heard that we are stopping the sale of supercomputers to tier 3 countries without a license. Again. Madam President, a 7,000 MTOPS computer is not a supercomputer. Supercomputers still need export licenses. I am told that the MTOPS for a supercomputer is in the 20,000 range and can go up to one million MTOPS--a far cry from 7,000. Let's look at the level the amendment seeks to control--2,000 MTOPS. This is a low-level work station computer. By 1998, personal computers will reach this level. Also, the alpha chip available next year will be 1,000 MTOPS itself. So just two of those in a computer would qualify the computer for an export license. It is very difficult for me to justify that companies will have to jump through so many hoops just to sell fairly low-level computers. We are truly turning back the clock on technology. I have previously made the point that we are stabbing ourselves in the foot, since computer companies in other countries do not have these controls, and therefore our efforts are futile to say the least. There are four European companies which sell computers in the 2,000-7,000 range as well as Japanese companies. We all know that they will be eager to make these sales. What is really ironic is that the Chinese themselves have now produced a computer at the 13,000 MTOPS level. They have surpassed the 7,000 current limit the sponsor of this amendment is trying to roll back. One argument I have heard is that Japan also requires validated licenses for its sales. Yes, that is true, but Japan's validated license system has always been a rubber stamp operation. The entire process takes 24 hours, if that. Ours can take months. And I can show you some unhappy constituents who can verify that. Another question I have is whether it is good policy to codify export controls at certain levels rather than leaving them to regulation. Do we really want to be in a position to have to change the law each time we need to decontrol? Is the Congress really able to act as quickly and as often as needed to adjust to rapidly changing technology? I think not. Madam President, I plan to send a second degree amendment to the amendment by my colleague from Mississippi and in a moment will ask for its immediate consideration. But I again want to mention that this amendment would request the GAO to perform a study of the national security risks that would be involved with sales of computers in the 2,000-7,000 MTOPS range to military or nuclear end users in tier 3 countries. It would also analyze the foreign availability issue to determine whether controls at 2,000 MTOPS and above would make any sense. Further, the amendment would require the Department of Commerce to publish in the Federal Register a list of end users which would require the filing of a validated license application, except when there is an administration finding that such publication would jeopardize sources and methods. Madam President, this is a sincere compromise in my position as subcommittee chairman of the committee of jurisdiction over this issue, which will help us decide whether there is a need to recontrol at the 2,000 level. It is far too controversial to decide this question today, or by next Tuesday when we will vote. I believe Commerce should be asked to publish this list and to further seek ways to work with computer companies to determine whether other end users are questionable in order to alleviate some of the uncertainty that is out there. Madam President, let us not turn back the clock on technology. Let us make a rational national security decision that also take into account the best interests of our exporters--and the jobs that they represent. Amendment No. 422 To Amendment No. 420 (Purpose: To require the Comptroller General of the United States to conduct a study on the availability and potential risks relating to the sale of certain computers) Mr. GRAMS. So, Madam President, I send my second-degree amendment to the desk, and ask for the yeas and nays on the amendment. The PRESIDING OFFICER. The clerk will report the amendment. The bill clerk read as follows: The Senator from Minnesota [Mr. Grams] proposes an amendment numbered 422 to amendment No. 420. Mr. GRAMS. Madam President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: In lieu of the matter proposed to be inserted, insert the following: SEC. . GAO STUDY ON CERTAIN COMPUTERS. (a) In General.--The Comptroller General of the United States shall conduct a study of the national security risks relating to the sale of computers with composite theoretical performance of between 2,000 and 7,000 million theoretical operations per second to end-users in Tier 3 countries. The study shall also analyze any foreign availability of computers described in the preceding sentence and the impact of such sales on United States exporters. (b) Publication of End-User List.--The Secretary of Commerce shall publish in the Federal Register a list of military and nuclear end-users of the computers described in subsection (a), except any end-user with respect to whom there is an administrative finding that such publication would jeopardize the user's sources and methods. (c) End-User Assistance to Exporters.--The Secretary of Commerce shall establish a procedure by which exporters may seek information on questionable end-users. (d) Definition of Tier 3 Country.--For purposes of this section, the term ``Tier 3 country'' has the meaning given such term in section 740.7 of title 15, Code of Federal Regulations. The PRESIDING OFFICER. Is there a sufficient second for the Senator's request for a rollcall vote? There is a sufficient second. The yeas and nays were ordered. Mr. COCHRAN addressed the Chair. The PRESIDING OFFICER (Mr. Enzi). The Senator from Mississippi is recognized. Mr. COCHRAN. Mr. President, I have listened carefully to the comments of my good friend from Minnesota in support of his second-degree amendment. I must say that the language of the amendment is appealing in some respects, particularly the suggestion that the General Accounting Office ought to be asked to conduct a review of this situation and the apparent risk to our national security caused by the export policies of this administration with respect to the sale of supercomputers and its technology to foreign purchasers. There is some question in my mind about the efficacy of the last part of [[Page S6023]] the amendment particularly, because in our hearings in the Governmental Affairs Committee the administration officials talked about the fact that the reason they did not publish and make available a list of end users or potential purchasers of these computers at this time was because of diplomatic considerations and the questions about whether it puts in jeopardy our intelligence-gathering capabilities and a number of other issues that concerned them enough so that they do not now make available this list even privately to exporters of supercomputers. So to require them to publish it in the Federal Register and to make it available to the general public is probably something that ought to be reconsidered and not approved by the Senate. They should not be compelled to do that. It seems to me that the reasons they gave in our hearing for not doing it even privately was enough and sufficient in my mind to raise questions about whether we should compel them to do it publicly. But looking back at the earlier complaints and the comments from my friend about the Cochran-Durbin amendment, let me say that this is not an effort on our part to roll back regulatory policy with respect to military end users. It is an effort to change the procedures and to put the onus and the responsibility for determining whether a sale is permissible or consistent with national security concerns on the administration rather than on the sellers of the computers. Computer companies do not have the capacity to make determinations on their own about the use to which the computers they are selling in the international market will be put, or the relationships between prospective purchasers and governments, particularly in the case of China or Russia. The U.S. Government, though, has the capacity, through its contacts worldwide, to do a much more reliable and accurate job of assessing whether or not someone would be a purchaser who would use these computers to enhance the lethalness of nuclear weapons or missile technology to put our own citizens at risk, the lives of Americans at risk, in a way that they would not otherwise be, but for the sale of our computer technology. So it is for that reason and that reason alone not to prevent the sale to legitimate purchasers who will use it for civilian or other appropriate purposes. It is in those situations where there is very real concern based on knowledge that we have about the potential harmful use--harmful to our own interests--that we ought to have the power, we ought to have the process reserved to the Federal Government to prohibit that sale in those selected situations. Right now the policy of our Government is to prohibit the sale of this category of computers if it is for the purpose of being used for a military use or sold to a military organization. It is prohibited under current law, under current regulations. So the suggestion that the Senator makes that we are imposing new restraint on trade in this amendment is not true insofar as it concerns the sales for military purposes. Current policy simply says to the exporters, if you know it is going to be used by a military organization, you cannot sell it--2,000 to 7,000 MTOPS speed computers cannot be sold under current U.S. law and under current regulations. So this amendment that we are offering does not impose a new definition that restrains the sale of computers. It simply says that the Commerce Department is going to give you the OK. Once you tell us who you will sell it to, they will tell you whether it is permissible or not. That is all we are saying. The current policy is it is up to the exporter to decide whether this is a military end use or an end user. If they sell it to someone they knew was a military end user, they violate the law right now. The problem is a lot of exporters, the people in the business of manufacturing and marketing supercomputers, do not have the capacity to make this determination. Also, there are motivations that are different. They are in the business of making money. They are in the business of selling as many as they can. The stockholders of these companies want to see sales go up, and so when there is a close question--we are not questioning anybody's motives here today--but where there is a close question and you really do not know for sure, the temptation is to go on and make the sale, particularly if there is really no hard evidence there. Now, there have already been those cases where there is enough evidence that people have sold computers to end users who are military organizations or who are involved in nuclear weapons programs, that they are now under investigations by a Federal grand jury. This is serious business. That could have been prohibited, maybe, if you had the Commerce Department saying, ``OK, it is fine, go ahead and make this sale. Here is your license.'' Then the civilian marketer is off the hook. The Commerce Department makes the decision. That is the issue. Do we leave it up to the honor system that has been developed by the Clinton administration, which is not working--46, we thought it was 46, but it turned out to be 47 as a result of the hearing we held of new information of these computers that are in the hands of Chinese entities and we do not know what they are being used for. Or if our Government knows, they cannot tell us in a public hearing session. We have to go behind closed doors to find out what they really know. From what we can talk about right now, we know that this policy ought to be changed, and for the business of ``this is not the right place, this is not the right time,'' and the jurisdictional question--well, the Commerce Department has jurisdiction over commerce issues, the Banking Committee has some jurisdiction, our Governmental Affairs Committee has jurisdiction over compliance with nonproliferation treaty provisions. We are constantly monitoring the question of proliferation of weapons of mass destruction in our committee, and we came upon this information through the exercise of our oversight responsibilities. It is a matter of some urgency, in our view, that this matter be addressed, and we think the U.S. Senate will agree with that. I think we have suggested a very modest but a very necessary first step in the process of reform of our policies over exporting computers. This administration came into office having made a promise to the computer industry that they were going to make some dramatic changes in the rules so that they could sell more computers in the international marketplace. That is fine. That is fine. But they have adopted a policy that is not working. It is not working to protect our national security interests, which is important. It is working in that it has helped sell a lot more computers and a lot of people have gotten rich under this new policy. I do not have a problem with that. No complaints are being made about that. But it was supposed to be a policy that both enhanced our ability to compete in the international computer market but at the same time protected our national security interests. It worked on the one hand, but it has failed on the other. We now see the Atomic Energy Minister in Russia, whose name is Mikhailov, bragging in a public forum about the new supercomputer technology they have bought from the United States that is 10 times more powerful and sophisticated than anything they have had before. This agency is in the business of modernizing the nuclear weapons that the Russians have. We have this Nunn-Lugar builddown program supposedly trying to dismantle these weapons of mass destruction, and we are very actively involved with the Russians in that regard. But at the same time, to be selling them the technology to make the weapons, they are more accurate, more lethal, capable of destroying potential adversaries like the United States, it seems we are working at cross-purposes with ourselves. We are trying to work to keep down the proliferation of weapons of mass destruction, and here we are, in this instance, contributing to the proliferation of more lethal nuclear weapon systems. Certainly that is true in the case of Russia and China. We know that. We know that. So what do we do about it? Nothing? Have some hearings? Have the GAO spend another year looking at things? We agree GAO ought to look at this. We are asking them to do that, too. They have already begun some work at our request. I agree with the Senator [[Page S6024]] that we need to do more, but to just say the Senate should not act on this suggestion, this is a modest first step. It is not a suggestion for comprehensive reform at this time. We need more information. We need to do more work to decide on the details of a comprehensive, workable policy than is on the books now and administered by our Commerce Department. So, but for the provisions of the amendment offered by the Senator that I have suggested caused me some concern, I would like to be able to support the amendment so that we could then go on and vote to approve the amendment as amended, but I cannot do that at this point. I hope the Senate will not agree to the amendment. I know under the announcement that was made earlier today on behalf of the majority leader, there will be no votes on amendments today. They will be set aside and we will come to them later. So there will not be a vote today. Knowing that there will not be, I will not push the issue any further, except to suggest to the Senate that this is an issue that ought to be debated, considered carefully, and we ought to vote for this amendment that I have offered with the cosponsorship of Senator Durbin. Incidentally, I asked the other day, after we had described the amendment, that Senator Abraham be added as a cosponsor. I have now been asked to seek unanimous consent that Senator Lugar be added as a cosponsor. I make that request at this time, Mr. President. The PRESIDING OFFICER. Without objection, it is so ordered. Privilege of the Floor Mr. THURMOND. Mr. President, I ask unanimous consent that Janice Nielsen, a legislative fellow with Senator Craig's office, be granted floor privileges during debate on S. 936, the Defense Authorization Act. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. GRAMS. Mr. President, I want to say I appreciate the remarks of my colleague from Mississippi, Senator Cochran. We hope to be able to work with him over the weekend and hope to come to an agreement and compromise with him by next week. Like he said, hopefully we can vote on this at that time. I yield the floor. Mr. THURMOND. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call. Mr. GRAMM. Mr. President, I ask unanimous consent that we may move from this quorum call into morning business for 20 minutes. The PRESIDING OFFICER. Is there objection to calling off the quorum? Mr. LEVIN. I object. The PRESIDING OFFICER. Objection is heard. The clerk will continue to call the roll. The bill clerk continued the call of the roll. Mr. GRAMM. Mr. President, making two separate requests, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER (Mr. Frist). Without objection, it is so ordered. Mr. GRAMM. Mr. President, I ask unanimous consent that I can proceed for 20 minutes as in morning business. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. INHOFE. Will the Senator yield for a unanimous-consent request? Mr. LEVIN. Reserving the right to object, would the Senator add to that, that following morning business that we go back into an automatic quorum call? Mr. GRAMM. Mr. President, I ask unanimous consent that following my speech, if it ever begins, that we go back into the quorum call, and I also ask unanimous consent that, without losing the floor, I might yield to Senator Inhofe so that he might get a staff member on the floor. The PRESIDING OFFICER. Without objection, it is so ordered. ____________________ ------------------------------------------------------------------------ Senate will continue consideration of the bill on Tuesday, June 24, 1997.