After reading the attached memorandum on tear gas-herbicides and the
Geneva Protocol deadlock in the Senate, you may ask what meaningful
analysis can we get this summer if the NSSM 112 study is not due until October or later.
Further data analysis will add more detail, but no one suspects that the
process will alter the basic conclusions of the study or the options,
arguments (military utility versus political costs) and agency
positions, Also, I understand from Admiral Welander that Joint Staff
believes it will have enough to support its case by August were
decisions desired.
Attachment
Memorandum From Michael Guhin of the National
Security Council Staff to the President’s Assistant for National
Security Affairs (Kissinger)
Washington, June 17, 1971
[Page 2]
SUBJECT:
- Tear Gas and Herbicides Use in War and the 1925 Geneva
Protocol
After the Geneva Protocol hearings, the Foreign Relations Committee
decided to take no action except to communicate its views to the
President. On May 5 we received Senator Fulbright’s April 5 (which was erroneously dated
March 5) letter to the President (Tab B) requesting that the
Administration reconsider its understanding that the Protocol does
not prohibit the first use of tear gas and herbicides in war.
Senator Fulbright’s other
main points are:
— Many members believe we should ratify the Protocol without
restrictive understandings on tear gas and herbicides or postpone
action until that is possible. They seriously question the military
utility of these agents.
— The President’s study (NSSM 112,
Tab G) on these agents should be available before final Senate
action.
— It is doubtful that the Protocol could pass on Secretary Rogers’ terms (Mr. Rogers said the President might not
ratify if the Senate modified the understanding); but he (Fulbright) sees no serious
opposition if the President proposed ratification without the
interpretation.
Ken BeLieu acknowledged (Tab
C) the letter and sent it to you for appropriate action. In mid-May,
we asked Ken for his judgment on this issue. He does not yet know
when he can sound out Senator Mansfield. (Mansfield has reportedly said the Protocol is in
trouble since a Senate majority is against herbicides and probably
against tear gas.)
Other related developments are:
— Senator Humphrey wrote Secretary Rogers (Tab D/State Reply Tab E) that we should not
reserve a first use option for warfare uses of tear gas and
herbicides.
[Page 3]
— Senator Brooke recently said (Tab F) that he will propose the
Protocol be referred to the International Court (ICJ) for interpretation.
— We are negotiating a BW ban at
Geneva (CCD) perforce on the basis
that it should rely on and not duplicate the Protocol’s ban on use. Our remaining outside the Protocol
might complicate this matter. Also, the Protocol’s scope will be
discussed as the Soviets and many others disagree with us and may
push their view at least for tactical purposes.
— Secretary Laird has
requested that the President approve extending herbicide operations
for base perimeter purposes until December, when he will recommend
“Vietnamizing” some herbicide capability. We are awaiting Secretary
Rogers’ comments. [You
will recall that we announced Mr. Laird’s earlier report that herbicide operations
would be phased out by May. They have, we understand, stopped.]
— We understand State PM and Legal
will soon ask Secretary Rogers to review Protocol options including (1)
reaffirming our position with no change; or (2) reaffirming it while
saying we will seek an agreed interpretation either by offering to
extend our undertaking vis-à-vis states which officially agree or by
seeking an ICJ opinion.
Before we can handle the tactics, we need to know the substantive
options and arguments on tear gas and herbicides. NSSM 112, issued on January 7, deals
with our policy on these agents. On April 23, you extended (Tab H)
the due date at the request of State from May 15 to October 15 and
said DOD’s inputs should be
expedited. (These inputs are still not expected until September, and
DDR&E will have only a
progress report on its herbicide study by then.)
The study as scheduled would likely be considered in late fall or
early 1972 and have the same basic options, arguments and agency
positions later as now. At most more time may tell us whether
current military utility estimates are understated, accurate or
overstated. The main question will remain constant in spite of
Vietnam complications: Does the military utility of a “first use”
policy outweigh our agreeing to a “no first use” policy vis-á-vis
states that agree? Also, we owe a response to the Foreign Relations
Committee.
We see three options: (1) sit tight and continue on course till late
fall or next year and take whatever flak occurs on the subject; (2)
speed up the NSSM 112 response; or
(3) send Fulbright’s letter
to State requesting an interagency review of options, arguments and
agency positions.
We question simply sitting tight because there is today no surety
that this issue is worth placing the President’s prestige on the
line and, like it or not, the Protocol is basic to his CBW policy decisions internationally
speaking.
Admiral Welander does not believe that the DOD study effort for NSSM 112 could be accelerated to the August time frame.
At best an interim report
[Page 4]
could be requested but it would probably be heavily caveated and
inadequate to serve as the basis for any decisions were such
desired.
On balance, to give the President the best analysis of the situation,
options and arguments before late fall, we favor sending the
Senator’s letter to State for an interagency review of the
situation, alternative responses, arguments and agency positions. At
Tab A is a proposed memorandum for Secretaries Rogers and Laird requesting a review by August
1.
At Tab 1 is an information memorandum for the President outlining the
Senator’s letter and your action.
Admiral Welander and John Lehman have concurred.
Recommendation:
That you sign the memorandum at Tab A requesting a review of our
Protocol options, and initial the memorandum for the President at
Tab 1.
Ken BeLieu has informed
Senator Fulbright that his
letter will be brought to the President’s attention. We see no need
for further reply at this time and, unless you believe we should
tell him more, we will merely inform Ken BeLieu of the action being taken.
