Op-Eds


Why Rush to Cut Nukes?

By John Yoo and John R. Bolton, The New York Times

THE sweeping Democratic midterm losses last week raise serious questions for President Obama and a lame-duck Congress. Voters want government brought closer to the vision the framers outlined in the Constitution, and the first test could be the fate of the flawed New Start arms control treaty, which was signed by President Obama and President Dmitri Medvedev of Russia last spring but awaits ratification. The Senate should heed the will of the voters and either reject the treaty or amend it so that it doesn’t weaken our national defense.

The treaty’s supporters are likely to try to rush it through the Senate before Congress adjourns. They worry that since the Republicans have gained six seats, New Start will fail to get the required two-thirds majority when the new Senate convenes in January.

Senators should be in no hurry. The Obama administration’s main strategy in this two-minute drill is likely to emphasize a “resolution of ratification” that the Foreign Relations Committee approved along with the treaty in September. But that resolution, which supposedly addresses concerns about missile defense and modernization of the nuclear arsenal, is a Trojan horse. Any senators who fall for this ploy will not only imperil our safety, they will also undermine the Senate’s formidable powers in the treaty-making process.

New Start’s faults are legion. The low limits it would place on nuclear warheads ignore the enormous disparities between American and Russian global responsibilities and the importance of America’s “nuclear umbrella” in maintaining international security. The treaty’s constraints on launching platforms would impede Washington’s ability to use conventional warheads even in conflicts far from any Russian interest or responsibility. There are plenty of other deficiencies, from inadequate verification provisions to leaving Moscow’s extensive tactical nuclear weapons capabilities unlimited.

New Start also reflects the Obama administration’s lack of seriousness about national missile defense. Its preamble accepts an unspecified “interrelationship” between nuclear weapons and defensive systems. Politically, even if not in treaty language, the Russians get what they want: no significant United States efforts on missile defense.

The Obama administration hopes to sell this dangerous bargain with a package of paper promises. The Foreign Relations Committee’s resolution contains various “conditions,” “understandings” and “declarations” holding that New Start doesn’t “impose any limitations on the deployment of missile defenses” or dilute Congress’s aspiration to defend the nation from missile attack. A second understanding exempts conventional weapons systems with a global reach. A third affirms Congress’s commitment to the safety and reliability of the nation’s nuclear arsenal.

Senators cannot take these warranties seriously — they are not a part of the text of the treaty itself. As Eugene Rostow, a former under secretary of state, put it, such reservations and understandings have “the same legal effect as a letter from my mother.” They are mere policy statements that attempt to influence future treaty interpretation. They do not have the force of law; they do not bind the president or future Congresses. The Constitution’s supremacy clause makes the treaty’s text the “law of the land.”

Unlike acts of Congress, treaties reorient the balance of power toward the president. His understandings and interpretations of treaties typically have (and should) predominate, as President Ronald Reagan demonstrated in the 1980s debate over the meaning of the antiballistic missile treaty. The president can, after all, completely withdraw from a treaty on his own: President George W. Bush terminated the antiballistic missile treaty in 2002 and President Jimmy Carter ended the Taiwan mutual defense treaty in 1980, both without Senate consent or judicial complaint.

To prevent New Start from gravely impairing America’s nuclear capacity, the Senate must ignore the resolution of ratification and demand changes to the treaty itself. These should include deleting the preamble’s language linking nuclear arsenals to defense systems, and inserting new language distinguishing conventional strike capacities from nuclear launching systems or deleting limits on launchers entirely. Congress should pass a new law financing the testing and development of new warhead designs before approving New Start.

All this is within the Senate’s powers. When it approved the Jay Treaty in the 1790s, which resolved outstanding disputes with Britain, the Senate consented only on condition that President George Washington delete a specific provision on trade. Washington and Britain agreed to the amendment, and the treaty entered into force. In 1978, the Senate demanded changes to the text of the Panama Canal treaties as the price of its consent.

While the Constitution gives the president the prime role in the treaty process, the Senate has the final say. If 34 senators reject a treaty, no president can override them. Senators should now use that power to advance the national interest by stopping or demanding changes in New Start. The Constitution’s plain meaning, so prized by the voters in last week’s elections, requires no less. 11/9/2010