A.E.I. Postmortem Shows Senate Wisely Rejected C.T.B.T. — For Substantive Reasons, Not Due to Partisanship or ‘Isolationism’

(Washington, D.C.): The American Enterprise Institute performed a signal pubic service in
the
immediate aftermath of the Senate’s defeat of the Comprehensive Test Ban Treaty (CTBT) by
hosting on 15 October a public postmortem on the Treaty and its rejection by 51 Senators. This
press briefing featured analyses by five experienced security policy practitioners who
participated extensively — and in some cases decisively — in the debate: former
Secretary of
Defense and Energy James Schlesinger, former U.S. Ambassador to the
United Nations
Jeane Kirkpatrick, former Assistant Secretary of Defense Richard
Perle, former Deputy
Assistant Secretary of Defense Douglas Feith and former acting Assistant
Secretary of
Defense Frank Gaffney.

The briefing established that: 1) The CTBT Treaty was fatally flawed. 2) The debate that
resulted in its rejection was well-informed, deliberate and not unduly hasty. 3)
Senate
repudiation of the CTBT was both in the interest of the United States and a necessary exercise of
the Senate’s constitutional responsibility to advise and consent to treaties. And 4) far from
marking, as some have suggested, the end of nuclear non-proliferation efforts and the prospects
for international stability, this action will probably enhance the efficacy and realism
of U.S.
efforts to accomplish those ends. Highlights of the participants remarks included the following:

Dr. James Schlesinger

• What would have been the effect of this treaty on proliferation? In the short run, it might
  have
  had some modest inhibiting effects on the quest for nuclear weapons. In the long run, it
  would have damaged the struggle against proliferation.

Why is that? Because the principal barrier against proliferation over the period
since the Soviet Union first detonated a weapon has been confidence in the
reliability of the American stockpile and the credibility of the American
deterrence. It has protected Europe, it has protected Japan, it has protected South
Korea. In 1976, the South Koreans gave up their quest for nuclear weapons because of
their confidence in American protection.

• If you look out 20 years and consider the weakening of the confidence in the U.S. stockpile
  and the hypothetical decline in the credibility of the deterrent, you will find other nations
  eager to take care of their own needs. I’ve mentioned Japan and South Korea as possibilities.
  In Europe, even with the end of the Warsaw Pact threat, you might find countries reaching for
  nuclear weapons.

• …Bear in mind that a nuclear warhead is radioactive. There’s tritium, there’s plutonium,
  there
  is enriched uranium. It is radioactive, and the radioactivity bears down particularly on the
  organic elements in the warhead. The high explosive is organic, so that will have to be
  replaced over time.

As to the other elements of this weapon, we recognize that there are thousands of parts
in a nuclear weapon. Those parts, those components, will have to be replaced over
time as they age and wear out….The manufacturers go out of business. Regulations
change, including environmental regulations, so that components cannot be replaced
with precision. But the most important element is that the nuclear core of the weapon
must ultimately be replaced.

• This is the only nuclear weapons state that cannot reproduce a nuclear weapon at this time.
  We will have to move, if we are prudent, to develop the capacity to produce those pits. But
  when we reach that point, unless we are prepared to test that pit, we will have no confidence,
  we will have limited confidence in the capacity of the weapon to detonate. We must,
  when
  we reach that point, test if we are to validate our estimate with regard to the nuclear
  components.

• Over time, we must acknowledge that both friend and foe will lose confidence in the
  credibility of the American deterrent, and thus we might be challenged by foes and that our
  friends whom we have protected might feel the necessity themselves of reaching for nuclear
  weapons.

• Much has been said about the enforcement mechanism in this treaty….We can challenge
  any
  suspicious event. We, the United States, or Britain or France could challenge such an event.
  The inspection provisions occur only if certain members of the Executive Council agree to an
  inspection. Getting 30 affirmative votes, let us say, in the case of China would be an uphill
  fight, I believe.

Now, in addition, the country that has been challenged has a right to reject any
nationals of a particular country or any individual inspectors. I think that you will
recall these kinds of issues in the inspection of Saddam Hussein’s capabilities.
The fight has been about Saddam Hussein’s desire to reject American inspectors and
to remove the United States and Britain from the inspection. This is guaranteed in this
treaty, so that the enforcement mechanism is one that does not have substantial
teeth.

Amb. Jeane Kirkpatrick

• The President in his remarks [after the CTBT was rejected] and much of the press in their
  remarks sound as if they believe that the act of signing a treaty would, in fact, remove nuclear
  weapons from the world. There’s been a good many sweeping statements to this effect of
  how to de-nuclearize a nuclear-free world. But, of course, only those states which were
  serious about the enforcement of the treaty, if they signed it, would be inclined to diminish
  their nuclear stockpiles and weapons because they had signed a treaty.

• We’ve had–in human history, we’ve had a great deal of experience with the unreliability of
  pieces of papers and signatures, of unreliable nations, to put it bluntly, or nations who do not
  put as much stock as we do, for example, in keeping their word. Not all cultures put the same
  emphasis on keeping your word. But I think that’s clear to anybody who looks at the
  situation.

• I believe very strongly that the [Senate’s] decision was a correct one and that it is very
  important that the Senate stepped up to it and made the hard decision because the easy
  decision was to go along.

• This is a UN treaty which has already been signed by 154 nations. Now, as everyone
  understands, most of those nations, almost all of those nations, have had little important
  experience with nuclear weapons.

• Anyone who has observed the operation of the Nuclear Non-Proliferation Treaty
  understands
  that many countries have signed who have violated it soon after it has signed. This is just a
  fact. Treaties are violated regularly, routinely, and it’s very easy in the case of the
  Non-Proliferation Treaty to identify those countries which have…signed the treaty and then in a
  subsequent period violated it and developed a nuclear capacity or something approaching a
  nuclear capacity.

[Thus,] as an instrument of…non-proliferation, this treaty is simply irrelevant. As an
instrument… [for] discouraging the modernizing and the reliability of nuclear
weapons, it is likely to produce a great many unexpected consequences.

Frank Gaffney

• Members of this panel…take great exception to the suggestion that we hear all the time
  now,
  that opponents of the treaty are isolationists, that they are partisans when it comes to matters
  of foreign policy, and that they are inveterate foes of arms control.

Some of us have been more critical of arms control than others, but I think all of us
are, if nothing else, internationalist in our outlook and in the recommendations that we
make, and I think many of the people, particularly the most prominent of this panel,
have been leaders in the effort to forge bipartisan approaches to foreign policy
problems under this administration as well as previous ones. And that is essentially
true of some of the Senators who were decisive in the outcome, not only decisive in
terms of getting to 34 votes, but to getting to a majority in the United States Senate.
I’m thinking of Senators–Richard has mentioned Richard Lugar, but he’s not
alone.
Ted Stevens, Thad Cochran, Olympia
Snowe, Susan Collins, to name a few, are
people of whom it simply cannot be accurately said that they are partisans on matters
of foreign policy, that they are isolationists, or that they are inveterate foes of arms
control. To the contrary.”

• It’s worth summarizing what Senator Lugar said was wrong with the Treaty because I think
  it’s what all of us believe is wrong with this treaty. It is unverifiable, it is unenforceable, and
  it will harm the U.S. nuclear deterrent. He voted, as did the other moderates, centrists, if you
  will, to defeat this treaty rather than delay it because they believed at the end of the day this
  treaty was irreparably defective.

• [It has been claimed] that this treaty was rushed to judgment, that there was inadequate time
  for debate or even hearings, that there was inadequate opportunity for amendments that might
  have fixed some of the problems that we’re talking about here. This overlooks one stunning
  and, I think, central reality. Every single Senator, Democrat and Republican
  — and I think
  that means, at least in the case of the Democrats, the White House — agreed to the terms and
  conditions of the debate, the timing of it, the amount of floor time, and the number of
  amendments and how they would be dealt with.

When the Democrats in favor of this treaty thought they had the votes, thought that
there was not going to be any need for worrying about amendments, [the agreed-upon
arrangement] was more than adequate. It only became “inadequate” and “hasty” and
“a rush to judgment” when — lo and behold — the opponents had done their homework
and mustered more than enough folks to defeat the treaty.

• [It has also been asserted that] it [was] all about partisan politics. [In fact,] this was a very
  substantive debate, at least on the part of people who opposed the treaty. I think that is very
  substantially due to the extraordinary work that Dr. Schlesinger did in conducting briefings,
  facilitated by Senator Kyl, by Senator Coverdell, and others, but, of course, most especially
  by Senator Lott….The opponents did their homework; and because they did their homework,
  if you look at the text of their statements, they were rich with content and substantive through
  and through. And that is why ultimately this treaty was defeated, because even people who
  would love to have been able to vote from it because it was an arms control treaty, even
  people who thought perhaps, as some have argued, that it was wildly popular with the
  American people — 82 percent, we’re told ad nauseam — they nonetheless voted
  against this
  treaty because of the substantive concerns and objections to it.

• What really is at work here is not narrowly an argument about the merits of this treaty and
  its
  demerits. It is much more a function really of the world views that are represented
  by the
  opposing parties.

On the one hand, I think it is fair to say that proponents of this treaty have generally
subscribed to, or at least in this case have embraced, the proposition that pieces of
paper will prevent countries like North Korea and Iraq and Iran and Syria and Libya —
to say nothing of China and Russia — from engaging in activities prohibited by its
terms. This is all the more bizarre because even people who are proponents of the
treaty, like Steve Andreasen of the National Security Council, have acknowledged that
the treaty will not prevent countries that want to from getting what he called a “simple
fission device,” which I think Dr. Schlesinger can explain is probably “good enough
for government work” for lots of the countries that we’re most worried about.

On the other hand, there are people that I think are represented by those of us on
this panel and certainly by the majority of the Senate who believe that pieces of
paper cannot bind countries that ignore their treaty obligations. So, you have
what Charles Krauthammer has called “a world imagined,” and then you have a
much more realistic view of the world.

And I for one only hope that what this treaty’s defeat will engender is what the
proponents now declare they want: a real, earnest, informed, and fulsome debate
about these two competing world views. It’s long overdue, it’s urgently needed,
because we have, in fact, spent much of the past decade — unbeknownst to most
Americans — adopting and implementing the premises of a very wrong-headed
world view, a world view that I think very few Americans, certainly not 82
percent, subscribe to. And it will, I suspect, if made a major debate in the next
few months, leading into the election cycle and perhaps being decided in the
election cycle, translate into as complete a repudiation at the polls as they were in
the United States Senate a couple of days ago.

Douglas Feith:

• There came a point in the deliberations in the Senate where there was an especially intense
  focus on the question of whether there’s really any legal difference between the Senate’s
  deciding to delay a vote and the Senate’s voting against ratification….There’s a principle of
  international law embodied in Article 18 of the Vienna Convention on the Law of Treaties
  that states that states are obligated to refrain from action that would defeat the object and
  purpose of the treaty when they have signed the treaty but have not yet made a decision on
  whether they’re going to ratify it.

And international legal principles of that kind also are incorporated through our
Constitution into domestic U.S. law, and so an argument could be made that it would
be improper, even illegal, for the United States to test nuclear weapons so long as
there has been no action on the CTBT, given that we signed it.

• What that means is that it was clear that there is a difference between simply delaying the
  vote
  and having the Senate reject ratification….I think that a strong argument can be made —
  and I think it would be the correct argument — that, at least from the point of view of
  domestic U.S. law, the Senate’s action in rejecting ratification of this treaty means that
  there is no legal obligation on the United States any longer that arises from our having
  signed this treaty.

• Secondly…there is some thought that the United States might be able to repair crucial flaws,
  crucial defects in the treaty, and [that it], therefore, could comfortably become a party to the
  treaty if it would enter into the treaty with certain reservations….For example, take the clause
  of the treaty that deals with the rights of parties to abrogate in the event of a threat to their
  supreme national interests. There’s a suggestion that the United States could enter into the
  CTBT with a reservation that would say if the President concludes that nuclear testing is
  required to preserve high confidence in the reliability of our nuclear deterrence, then that issue
  of confidence in our nuclear deterrent is a issue of supreme national interest, and the
  President’s decision, the determination that testing is required is the kind of extraordinary
  event that the treaty refers to in the supreme national interest clause….

• Now, this issue of whether it’s legal to craft such a reservation and enter into a treaty on the
  basis of such a reservation is also addressed in this Vienna Convention on the Law of Treaties
  and in Article 19, and there are two points relevant to this Article 19 that should be made.
  One is that it says that a state can formulate a reservation unless the reservation is prohibited
  by the treaty, and the CTBT expressly says no reservations are permitted.
  That’s point
  one.

And point two is it says that reservations cannot be made in such a treaty as the CTBT
if the reservation would be incompatible with the objective….One way to judge
whether it would be incompatible would be if this reservation were written up as a
treaty provision and put before the conference that adopted this treaty. I think it is fair
to predict that virtually nobody, virtually no party to this treaty would endorse
this reading, and they would consider it incompatible with the treaty.

• So I think it’s important that we clear away any illusion that one can unilaterally
  remedy
  so profound a problem with this treaty when the treaty is a multilateral agreement
  with…150 or so signatories.

Richard Perle

• One of the things that…is fundamentally flawed in the multilateral approach to arms control
  —
  and particularly these large, very large global agreements involving 150 or more states — is
  that they put together in the same regime the good guys and the bad guys, if I can use those
  terms, the proliferators as well as the people who are trying to stop proliferation. It’s like the
  police entering into an agreement with the criminals, and we will all agree to be bound by the
  same code of behavior.

• Unfortunately, these multilateral treaties by their very nature accord the potential
  criminals the same rights and respect, if you will, as the countries that are trying to
  contain that behavior. I think it’s a fundamentally unsound model.

• At the end of the day, we will be most successful in restraining proliferation by
  working
  together with a few countries that share our goals and objectives in a variety of ways,
  but I don’t think signatures on multilateral treaties are going to be the way to do it.

The Bottom Line

The case for rejection of the Comprehensive Test Ban Treaty was compelling and the Senate
is to
be commended for embracing these substantive arguments, despite the intense and
shrilly
partisan pressure brought to bear in the hopes of dissuading Senators from performing the
needed quality control function on this fatally flawed accord.