WHERE’S SAM NUNN WHEN WE NEED HIM? MUTATING TREATIES REQUIRE — BUT LACK — SENATE OVERSIGHT

Precis: A troubling pattern has emerged
in recent months — the Russians refuse to honor their
arms control obligations and the Clinton Administration
accedes by overlooking Moscow’s violations and/or by
modifying treaties to accommodate them. Presumably
fearful that such concessions would not be endorsed by a
Republican-controlled Senate, the Administration has
chosen not to submit these treaty modifications for its
advice and consent. Given the serious security
implications of these changes, it is surprising that
Republican senators are letting the President get away
with this behavior. It is simply astounding,
however, that a leading Democrat, Sen. Sam Nunn — who in
the past professed great concern about the Senate’s
prerogatives in the treaty-making area — has acquiesced
in this continuing, gross infringement on those
prerogatives. Will he and his colleagues continue to do
so?

(Washington, D.C.): Tomorrow, Russia will formally
violate the Conventional Forces in Europe Treaty.
That it would do so comes as no surprise; Moscow has
failed fully to draw down the thousands of battle tanks,
armored vehicles and heavy artillery pieces it is obliged
to remove from the northern and southern flank regions
and has telegraphed its intention not to do so for
months. Russian Defense Minister Pavel Grachev did so
again quite pointedly yesterday, announcing that
“compliance [with the CFE accord] will fully violate
our country’s system of security both in the south and in
the north.” Evidently, the Kremlin believes it must
retain 1,100 tanks, 3,000 armored vehicles and 2,100
artillery pieces in its Western region in order to
intimidate — and, if necessary, to fight — adversaries
at home (e.g., the Chechens) and abroad (e.g., the Baltic
States, Azerbaijan, Georgia and Turkey).

The Clinton Administration has responded to this
strategically portentous and politically sensitive
Russian recalcitrance by essentially capitulating. It has
agreed to support an adjustment to the CFE Treaty that
would enable Moscow to keep the tanks and artillery
pieces it wants along the flanks. Washington has, to
date, agreed nearly to double the number of armored
vehicles the Russians are allowed to have in the region
(i.e., 1,000 armored personnel carriers, etc. versus the
580 it is permitted to have and in contrast to the 3,000
the Kremlin currently seeks).

U.S. allies — notably Norway and Turkey — are
understandably concerned about such changes in the CFE
flank limitations. After all, these constraints were the
subject of intensive negotiations; the levels permitted
by the Treaty already represented significant concessions
on the part of NATO. With the Americans signaling a
willingness to cut the Russians further slack, however,
it seems unlikely that the rest of the alliance will be
able to prevent the legitimation of Moscow’s CFE
violations.

An All Too Familiar Pattern

Unfortunately, a similar pattern has emerged in
connection with other arms control agreements with
Russia. Troubling examples include:

• The Kremlin refused to honor verification
  arrangements called for in the Intermediate Range
  Nuclear Forces (INF) Treaty. Faced with this
  blatant violation, the Clinton Administration
  agreed to amend the Treaty, essentially waiving
  its right to perform on-site inspections of
  missile canisters exiting the Votkinsk missile
  assembly facility. This affords the Russians the
  opportunity to use that facility to manufacture
  prohibited ballistic missiles.
• Russia has maintained a large and very active
  biological weapons (BW) programs in violation of
  the Biological Weapons Convention. The
  Clinton Administration prefers the theory that
  President Yeltsin remains unaware of this
  activity and unable to control it over the
  alternative possibility — namely, that his
  regime consciously approves of the covert,
  illegal accumulation of biological weaponry. The
  Administration’s excuses notwithstanding,
  Russia’s BW capabilities pose a serious threat either
  way.
• Moscow continues to withhold information about
  its vast chemical weapons (CW) arsenal and
  ongoing CW research, development, testing and
  production activities. In so doing, it is
  violating bilateral agreements with the United
  States and contravening the spirit of the
  Chemical Weapons Convention to which it is a
  signatory. The Clinton team has generally
  minimized the significance of this behavior and
  is inclined to help pay for the storing and
  dismantling of Russian chemical arms.

The Kremlin’s behavior with respect to chemical
weaponry — among other factors — has prompted
the chairman of the Senate’s Foreign Relations
Committee, Sen. Jesse Helms (R-NC), to block
Senate consideration of that Convention.⁽¹⁾

• In violation of the START I Treaty, Moscow
  insisted on selling intercontinental land- and
  sea-based missiles as “space launch
  vehicles” on the world market. On 28
  September 1995, the Clinton Administration agreed
  to amend the Treaty so as to legitimate this
  ominous initiative by excluding ballistic
  missiles so-designated from the accord’s counting
  and verification rules. More incredible still, it
  has agreed to allow Russia to designate sites in
  places like Libya or Cuba as “space launch
  facilities,” thereby enabling the Kremlin
  legally to export ICBM complexes anywhere it
  wishes in the world. In this manner,
  state-of-the-art, long-range ballistic missiles
  may soon be as commonplace in the Third World as
  is already the case with the biological and
  chemical weapons they might carry.

If Only Sam Nunn Were Still in the Senate…

In 1986-87, Sen. Sam Nunn (D-GA), emerged as a
powerful and principled advocate for the Senate’s
constitutional rights and responsibilities with respect
to the treaty-making process. He became indignant over
the Reagan Administration’s effort to interpret the 1972
Anti-Ballistic Missile Treaty in such a way as to permit
activities that were described as prohibited in the
course of Senate ratification hearings. In the course of
several lengthy speeches on the Senate floor, Sen. Nunn
earned the admiration of even those who disagreed with
his substantive position for the case he forcefully made
that the Senate was — and must remain — a
co-equal partner with the executive branch in the making
and modification of treaties.

For example, on 25 July 1986, Sen. Nunn said, in part:

“…In formulating the constitutional
division of checks and balances in the treaty-making
area, the Founding Fathers explicitly rejected an
approach wherein the Senate would delegate exclusive
authority over treaties to the Executive. As stated
in Federalist Paper No. 75:

‘The history of human conduct does not warrant
that exalted opinion of human virtue which would
make it wise in a nation to commit interests so
delicate and momentous a kind, as those which
concern its intercourse with the rest of the
world, to be the sole disposal of a magistrate
created and circumstanced as would be a President
of the United States.’

“One hundred years later, a distinguished
American jurist, Supreme Court Justice Story, echoed
this theme:

‘It is too much to expect that a free people
would confide to a single magistrate, however
respectable, the sole authority to act
conclusively, as well as exclusively, upon the
subject of treaties…The check, which acts upon
the mind from the consideration that what is done
is but preliminary and requires the assent of
other independent minds to give it a legal
conclusiveness, is a restraint which awakens
caution and compels to deliberation.’

“More recently, though in a different but
related context, the distinguished chairman of the
Armed Services Committee, Senator Goldwater, also
warned against the notion that the Senate’s role in
treaty-making stops at the point where advice and
consent is given. Arguing in 1978 against President
Carter’s unilateral termination of the United States’
mutual security pact with Taiwan, Senator Goldwater
said:

‘The Framers created a system of checks and
balances especially to assure that there would be
joint deliberation within the Government on
important matters of this kind. The added
deliberation called for by requiring legislative
participation offers security to the people that
an action of major consequences will not be taken
lightly or without an opportunity for adequate
consideration.'”

Curiously, no objection has been heard from Senator
Nunn to the Clinton Administration’s recurrent infraction
of these constitutional principles and practices. In
fact, at the moment, Sen. Nunn is actually urging the
House-Senate conference on the FY1996 Defense
authorization bill to adopt language that would allow the
Administration to expand dramatically the scope of the
1972 ABM Treaty — provided it does so unilaterally!⁽²⁾

The Bottom Line

At the moment, the congressional leadership is under
intense pressure from the Clinton Administration to give
Senate advice and consent to two pending treaties — the
START II Treaty and the Chemical Weapons Convention. As
the Center for Security Policy has pointed out on
numerous previous occasions,⁽³⁾
both of these treaties have serious flaws that should
preclude their ratification by the United States Senate.
(Recent indications that the Russians are seeking
dramatically to alter START II and may not
ratify it in any event — like their ongoing
CW program — ought to give pause even to these treaties
proponents.)

Whatever the Senate ultimately decides to do about
these and other, future arms control agreements, there is
no excuse for it not following the Nunn Rule with respect
to existing treaties: If the executive branch chooses
— either unilaterally or in collaboration with another
state party — to modify ratified treaties in a manner
that changes the object and purpose of such agreements
from that consented to by the Senate, such modifications must
be submitted for approval by two-thirds of the Senate.
It is to be earnestly hoped that Senator Nunn’s legacy in
that institution would include invocation of this Rule
with equal vigor whether the executive branch is
in Republican or Democratic hands. In any event, it is in
the national interest that the rest of the Senate should
adhere closely to principles he enunciated in 1986-87.

– 30 –

(1) For more on Sen. Helms’
principled position, see the Center’s recent Decision
Brief entitled Profile In Courage: Jesse
Helms Is Right To Block A Fatally Flawed Chemical Weapons
Treaty (No. 95-D 92, 14
November 1995).

(2) It is ironic that Robert Bell
— who was Sen. Nunn’s principal staffer on the ABM
Treaty reinterpretation issue — is now the executive
branch’s point man at the National Security Council
responsible for much of these extra-constitutional arms
control initiatives.

(3) See, for example, the Center’s When
Will We Ever Learn? Last Bush Foreign Policy Paroxysm
Produces Flawed START II Accord — For Wrong Reasons
(No. 92-D 150, 31
December 1992) and Center Warns Senate That
Chemical Weapons Convention Is A Hoax, Must Be Rejected ( href=”index.jsp?section=papers&code=94-D_59″>No. 94-D 59, 9 June 1994).