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Will Congress Have the Spine to Defy Trump and Defend the US-Russia Nuclear Treaty?


October 27, 2018
Bruce Fein / The American Conservative & Jacob Heilbrunn / The National Interest

Congress commands clear constitutional authority to prohibit Donald Trump from terminating the 1987 Intermediate-Range Nuclear Forces Treaty with Russia. But does it have the spine? As Alexander Hamilton explained, the president was denied plenary power over treaties because presidential venality or narcissism might compromise the national interest. Among other things, Hamilton emphasized, "An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth."

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Will Congress Have the Spine to
Defy Trump on a Russian Nuke Treaty?

Bruce Fein / The American Conservative

(October 23, 2018) -- Congress commands clear constitutional authority to prohibit President Donald Trump from terminating the 1987 Intermediate-Range Nuclear Forces Treaty (INF) with Russia. But does it have the spine?

Trump recently signaled that his administration would be pulling out of the treaty, in part, he said, because the Russians have been violating it since 2014.

The Constitution's Treaty Clause stipulates that the president "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur."

Alexander Hamilton explained in Federalist 75 that the president was denied plenary power over treaties because presidential venality or narcissism might compromise the national interest. Among other things, Hamilton emphasized, "An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth."

The Constitution's text is silent on whether Senate consent is necessary to terminate a treaty. But the reasons Senate consent is needed to enter into a treaty apply equally to treaty terminations: namely, fear of corrupt presidential motives.

The sole Supreme Court precedent here is Goldwater v. Carter (1979). Therein, President Jimmy Carter unilaterally terminated the 1955 Taiwan Defense Treaty to normalize relations with the People's Republic of China. Senator Barry Goldwater then sued the president, alleging that Senate consent was needed for treaty termination.

A Supreme Court plurality of four voted to dismiss the suit for presenting a nonjusticiable political question without reaching the merits. Concurring, Justice Lewis Powell argued that because Congress had not institutionally challenged the president's treaty termination with an opposing resolution or statute, Senator Goldwater's claim was not ripe. The Supreme Court has never decided whether Senate consent is necessary to terminate a treaty.

Article XV of the INF treaty provides:
Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to withdraw to the other Party six months prior to withdrawal from this Treaty.

Senate ratification was necessary to make the United States a "Party" to the INF treaty. A parity of reasoning would require Senate consent to terminate the United States as a "Party."

Without running afoul of Goldwater v. Carter, the Senate could set the stage for a judicial decision by passing a resolution declaring that Senate approval is necessary for INF treaty termination.

Senate Foreign Relations Committee Chairman Bob Corker has stated that termination "would be a huge mistake." Senator Rand Paul echoed those sentiments: "It's a big, big mistake to flippantly get out of this historic agreement." The two should sponsor a Senate resolution accordingly in the event President Trump decides to withdraw from the treaty with six months' notice under Article XV.

The power of the purse, however, is the ultimate congressional trump card. Congress could approve legislation that prohibits the expenditure of any funds of the United States to deploy weapons or in any other respect contravene the INF treaty. The House passed a comparable spending measure in 1988 to prohibit President Ronald Reagan from acting contrary to the never-ratified SALT II agreement with the Soviet Union.

As James Madison presciently observed in Federalist 58:
"This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure."

Congress will be required to take up a new spending measure for several government departments and agencies whose appropriations expire on December 7. That would be a wonderful opportunity for our elected representatives to display a little backbone by prohibiting any expenditure of funds that would run afoul of the INF treaty, a landmark nuclear arms agreement that is as much to be marveled at as imitated.

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.



The Dangers of Withdrawing from the INF Treaty:
An Interview With Richard Burt

Jacob Heilbrunn / The National Interest

"We're potentially just a short distance from a major mistake."

(October 23, 2018) -- So there were a variety of things that could signal to our allies in particular, but the world more broadly, that we were willing to go the extra mile to preserve this thread. But we failed to do that. So once again the United States was perceived as leaving trade pacts with the Asians, the JCPOA with Iran, the Paris Climate Accord, and now the INF treaty. So from a diplomatic standpoint, it was a very big failure.

Heilbrunn: But is this the Bolton-Cheney view of the world?

Burt: Let me get to that because that is going to raise a second major problem and a deeper problem with this decision. The INF wasn't just created in this period of thaw in the US-Soviet relationship in the 1980s. It was the end result of a decade of nuclear crisis in Europe when the Russians started deploying -- in the late 1970s -- a lethal new intermediate-range missile, the SS-20, which held the Europeans hostage.

Our response to that was to both deploy new missiles ourselves, ground-launched cruise missiles and the famous Pershing II, but also to seek an arms control outcome. The argument, the reason why we responded that way, was that the perception in Europe -- and in some corners in Washington -- was that a gap in deterrence was opening up.

That the traditional US strategy of extended deterrence -- that is not only deterring Russian nuclear strikes on the US homeland but also their ability to attack Europe -- was weakened by the deployment of this new intermediate-range missile. The INF closed that gap in deterrence and solved that military problem.

Heilbrunn: Which had originally been highlighted by German chancellor Helmut Schmidt in London at the International Institute for Strategic Studies.

Burt: Exactly. In a famous speech he gave in 1977, which led to the NATO decision -- the so-called double-track decision -- in 1979. We are now in a situation where we could once again face a deterrence gap. Here's why: if we walk away from the INF treaty, Moscow will be free to deploy this new cruise missile, the SSC-8, as well as a new intercontinental-range ballistic missile which can be easily adapted as an intermediate range system.

So once again we will face a situation where we will have to decide how we are going to address this gap -- at a time when US-European relations are much more fragmented and under even greater stress than they were in the early 1980s.

The irony of all of this is that the Russians themselves were conflicted about the INF treaty. The Russian military has been lobbying against the INF Treaty for over a decade. We live in the Western Hemisphere and thus don't face any direct nuclear threats from our neighbors. But the Russians face a proliferation of nuclear threats around their periphery and they felt that they're hands were tied by the INF Treaty, and that they couldn't respond with their own intermediate-range forces.

So I'm sure once the Russian General staff heard of Trump's decision there were celebrations. But I think the political leadership still likes the idea of US-Russia arms control because it provides the sense that the Russians are a coequal superpower and gives them a certain amount of status. But by and large, this was the one arms control treaty you could point to that clearly favored American interests as opposed to Russian interests. So it's bizarre that President Trump and John Bolton have sabotaged it.

Heilbrunn: But Bolton's idee fixe, and Trump's "America First" rhetoric, would suggest that this is fully consonant with their vision of American foreign policy -- of an unfettered, unilateralist power that has no permanent alliances anywhere in the world and can act as it wishes, wherever and whenever it pleases, to stop someone it deems an adversary. Isn't that really the Dick Cheney view of the world? Bolton and Trump essentially are not isolationists; they're unilateralists.

Burt: I agree very much that they are unilateralists. And the United States always has to retain the capability to act unilaterally if necessary. But in an era when Chinese power is growing, and the Russians are resurgent, and there are other powers emerging in the international landscape, I think that the United States needs allies and partners more than ever before. It is the one key advantage we have over both the Russians and the Chinese.

So this strategy of unilateralism, in my judgment, does not reflect a clear understanding of what our interests are in what is emerging as a truly multipolar system. On the one hand, we can't be a liberal hegemon as we tried to be after the Cold War; we don't have that capability. On the other hand, to move to the other end of the spectrum and be completely unilateralist also creates a new range of very serious risks.

Heilbrunn: Is the United States becoming a rogue state by ripping up all of these treaties?

Burt: Rogue may, in fact, be too strong a term. But we are certainly becoming a highly unpredictable state and a state that is not only difficult to do business with but also to trust. And that is a very serious development because there are very important countries -- to name just a few Japan, Germany, France, Britain, potential new partners like India, that we are going to need to rely on in the future if we're going to protect our interests. If they don't trust us, if they find our policies too unpredictable, then we're going to lose important influence in the world.

Heilbrunn: If you were Kim Jong-un, would you sign a nuclear arms agreement with the United States after these moves?

Burt: If it was the nuclear agreement Kim Jong-un seems to want, then I would because it doesn't appear to contain much substance if it is all smoke and mirrors. But, no it's going to be very hard for countries in the future to enter into agreements with the United States. They're going to have to think twice. And that goes for other existing treaties now that the INF treaty domino has fallen.

The next question is: what is the future of New START? Do we want to be in a position where intercontinental-range systems -- bombers, submarine-launched ballistic missiles, land-based missiles -- are unconstrained? And do we need at this point, when the preeminent strategic challenge facing the United States in the twenty-first century is China, well, do we want to be distracted by a new strategic arms race with the Russians?

Heilbrunn: President Trump essentially said a few days ago "bring it on." We can build as many nuclear weapons as we want until everyone else sees that we can pull this off and they'll have to capitulate and come to the table. Is that realistic?

Burt: No, it isn't. It isn't realistic because we do have a large economy -- probably still larger than that of China's -- but we have a number of military responsibilities, and we're living in an economy where Trump doesn't want to reduce spending for entitlement programs.

His political base isn't going to put up with ending Medicare or Social Security or substantially cutting back on them. He has promised and legislated a tax reform plan, which has already led to substantial increases in the US deficit. So warning of a new arms race as a way of achieving arms control strikes me as a very facile and phony threat.

Heilbrunn: Do you believe withdrawal from the INF Treaty will be seen as a turning point in America's foreign-policy fortunes? Or just another step on a road to an uncertain future?

Burt: It is a serious mistake. And it is going to be important to pay close attention to not only how the Russians react but more importantly the Europeans.

Heilbrunn: Well both the Germans and Japanese are very allergic to this move, and they're already signaling that.

Burt: Well, Trump either consciously or unconsciously seems to have declared war on Germany. The Germans don't have the advantage of having their own small nuclear deterrent as does Britain and France; it is more dependent on the US nuclear guarantee than they are. And Germany finds itself attacked by this administration in terms of trade policies, in terms of its defense spending, in terms of its purchases of energy from Russia, and now with the INF treaty.

The real question is: has the fundamental foundation of German security policy been undermined? This should trigger a real crisis of Germany thinking about their security options. Now it is interesting to think about how they'll react.

Will they look to the European Union and the embryonic efforts there to build a kind of European defense and security pillar? Will they look to create a new, closer relationship with the Russians, which has always been a kind of romantic dream of the German left? Will they try to establish themselves -- as current German public opinion would like to do -- to try and identify themselves as just a bigger version of Switzerland. That, in my view, is unsustainable. They will have to make a choice.

Heilbrunn: There's another option though. Part of the political spectrum of the country is moving to the right.

Burt: Correct.

Heilbrunn: And part of it is moving to the left.

Burt: Correct. You are beginning to see some of the same kind of polarization you've seen in other parts of Europe and the United States.

Heilbrunn: There's talk of building a German atomic bomb.

Burt: I know there is. And I've spoken to some people who are at least participating, or beginning to participate in that debate. I don't think it would be a truly independent German deterrent. The Germans would seek to somehow multi-lateralize that capability.

Heilbrunn: With the French.

Burt: Maybe with the French. The British as well. The Germans do have nuclear weapons on their territory and nuclear-capable aircraft. They operate as members of the NATO nuclear planning group. So the Germans in some ways, while not an independent nuclear power, are part of the NATO nuclear structure.

But since NATO is an American operation that will not be viewed, in my judgment, as sufficient going forward. There will have to be a European umbrella of some sort to give the Germans greater confidence in their security and the future.

Heilbrunn: So the final question would be: is President Trump reacting to shifts in world politics that were already occurring and accelerating them? Or is he willfully hurling us into an unnecessarily dark future?

Burt: I would like to believe that President Trump, together with his senior advisers, have a plan, a strategy that they are moving towards. And I would like that strategy to be explained so that people can understand it and debate it. But I don't think that strategy exists. I don't think there is a strategy here and that's what makes the current situation all the more dangerous and difficult.

I think the INF decision was taken in an impetuous way -- it wasn't thought through and, as a result, you can't really explain it in any coherent way. I think that's true for most of Trump's foreign policy -- it's partially unilateralist, but it's also partially emotional, and it's partially visceral. And without a framework, without a fleshed-out policy, it's highly unpredictable and, as a result, it reduces our influence on the world stage, and we're potentially just a short distance away from a major mistake.

Heilbrunn: Thank you for the interview.

Richard Burt is chairman of the National Interest's Advisory Council and a former US ambassador to Germany and assistant secretary of state for European and Canadian affairs. Jacob Heilbrunn is editor of the National Interest.

Posted in accordance with Title 17, Section 107, for noncommercial, educational purposes.

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