By John R. Bolton and John C. Yoo, The New York TImes
OUTER space has become the next frontier for American national security and business. From space, we follow terrorists and intercept their communications, detect foreign military deployments, and monitor a proliferation of unconventional weapons. Our Global Positioning System gives us targeting and tactical advantages, spacecraft create image-rich maps, and satellites beam data around the world.
But instead of advancing American primacy in this realm, the Obama administration has wrongly decided not only to follow a European Union draft “code of conduct” regulating outer space, but also to circumvent the Senate’s central constitutional role in making treaties.
The Obama administration recently declared that America would follow, though not sign, a European Union code of conduct for outer space — a transparent end run around the constitutional requirement that the Senate ratify all treaties. This code, drafted by Europeans who do not bear America’s global responsibilities, restricts military activities in space as well as some peaceful dual-use technologies, like the multistage rockets used to launch commercial satellites.
Europe aspires to prevent an “arms race” in the heavens, but in reality, its code would substantially impede advances in space technology because such innovations could also be labeled as military. While security activities receive an exception, it appears confined to self-defense, a term often defined narrowly to include only cross-border attacks. We should not take the unnecessary risk that our rivals will exploit such ambiguity to prevent legitimate American actions.
Since there is little our friends across the pond don’t want to regulate, it is no surprise that they are now reaching for space. Taken literally, the European Union code would interfere with our ability to develop antiballistic missile systems in space, test antisatellite weapons and gather intelligence.
And we shouldn’t expect China to voluntarily accept limits on its space strategy anytime soon. In 2007, China tested weapons that destroyed defunct satellites, and it is deploying its own GPS system. In a war, China could potentially destroy our satellites and still retain its own GPS capabilities.
Military and intelligence strategists understand the risks these limits could pose to our national security. A Joint Staff analysis provided to the House Armed Services Committee states that “if the United States were to make a good-faith effort at implementing the requirements of the draft Code,” it would most likely have an adverse impact on military operations. Members of Congress recognize the national security threats, too. They realize that America must not commit to military limitations in a rapidly changing field before we understand all the costs and benefits.
But the more far-reaching danger is that Mr. Obama is eroding American sovereignty on the sly. He knows that an arms-control treaty for space is unlikely. He barely managed to push the new strategic arms reduction treaty with Russia — a bad deal — through the Senate. In addition, he is trying to enter the United Nations Convention on the Law of the Sea through the back door, by committing our Navy to follow its terms even though the Senate refuses to consider it.
Other presidents have tried to comply with international agreements without Senate approval. Bill Clinton bypassed the Senate when he signed the International Criminal Court Treaty and regarded the Comprehensive Test Ban Treaty as binding even after Senate rejection. Even Ronald Reagan adhered to the 1979 strategic arms limitation treaty with the Soviet Union, but not under the delusion that international law required it. And after seeing evidence of Soviet cheating, Reagan ceased American compliance in 1986.
The Obama administration has characterized its policies as voluntary compliance with European standards, not a legal agreement. While such subterfuges allow presidents to ignore selected parts of unratified agreements, the Obama administration’s objective is precisely the opposite. When they were academics, several of his current advisers loudly proclaimed that simply signing treaties without the Senate’s consent helped form binding “customary international law.”
The Constitution’s framers sought to preclude such schemes through the treaty process. They worried about treaties with Britain and Spain that might cede territory or sacrifice navigation rights in exchange for peace. They would have understood that any arms control deal restricting our sovereignty required a treaty. Our system allows statutes, known as Congressional-executive agreements, to make some international agreements. But successive presidents and Senates have reserved the most vital national obligations for treaties.
Constitutional principles seem to be mere inconveniences to Mr. Obama, however. In pursuing his long-term goal of blunting American power so it meets with approval in international organizations and foreign capitals, the Senate’s role is a nuisance at best. Instead, his administration is ordering our military and intelligence agencies to comply with international agreements without the “technicality” of Senate approval.
The Constitution rightly provides broad executive powers to protect America’s security, especially in responding to unforeseen crises with speed and secrecy. But abusing presidential prerogatives in order to abide by a European code of conduct that erodes American sovereignty eliminates the Senate’s important constitutional role. That does not make America safer; it weakens it.
American security must not be sacrificed for the false promises of global governance. The Senate can defend its constitutional prerogatives by aggressively financing programs to advance our lead in space and refusing to follow the administration’s foreign-policy lead until Mr. Obama respects the Senate’s vital role in making treaties and protecting national sovereignty.