OLC on the ABMT

As you probably know, the Obama administration “released”:http://www.usdoj.gov/opa/documents/olc-memos.htmsome old Office of Legal Counsel memos a few weeks back.

“One of them”:http://www.usdoj.gov/opa/documents/memoabmtreaty11152001.pdf, dated 15 November 2001, is titled _Memorandum Regarding Authority of the President to Suspend Certain Provisions of the ABM Treaty_. I asked a FoKerr who wished to remain anonymous for their thoughts on the memo.

Those thoughts are below, edited for clarification and to protect the innocent. The 1997 MOU referred to near the beginning is “this one”:http://www.fas.org/nuke/control/abmt/text/ad-mou.htm, which would have made Belarus, Kazakhstan, Russia, and Ukraine parties to the treaty. The MOU has never been submitted to the Senate.

I’ve read the whole memo, and I think my head is about to explode. I thought they were dealing mostly with the MOU on succession because that’s where they start. Their opinions on the MOU seem to be that, since it never entered into force, the ABM Treaty remained in force as a bilateral Treaty between the U.S. and Russia. I think this is accurate. They return to the MOU at the end of the memo and seem to be laughing at Clinton for his decision to submit it to the Senate as an amendment to the Treaty. They don’t think he needed to do that because it was his right, as President, to declare the Treaty to be multilateral. They are missing some significant history here. Clinton didn’t agree to submit the MOU because he thought he needed advice and consent. He did it because Helms et al wanted a crack at defeating it, and the Treaty, and had threatened other Presidential priorities (and START II) if he didn’t submit it. It was a political decision, not a legal one.

Also, the memo makes it clear that they are not addressing the Members of Congress who just wanted the Treaty to lapse, they are addressing those who wanted to have a Senate vote on the U.S. plan to withdraw. They conclude (correctly, I think), that the President can withdraw from a Treaty without Senate advice and consent. So, I’m with them up to there. If Bush wanted to withdraw from the ABM Treaty, he could do so.

But then they start to lose me and make my head ache. They get into the issue of suspension, particularly suspension of some, but not all of the Treaty. It seems that they were asked if the Pres could do this so that he could avoid withdrawing while proceeding with his missile defense tests. At the time that we were negotiating with the Russians about modifying or redefining some of the Treaty provisions, or having both sides withdraw together (which is what Bush really wanted) because we were coming up on some missile defense tests that would have violated the Treaty (using Aegis radars to track a long-range missiles). So we either had to violate, redefine the provision, or withdraw from the Treaty.

And Yoo decided the President could just suspend that provision (and others that interfered with upcoming tests) without withdrawing from the Treaty. Now my head explodes. From a political perspective, one could see this as a way to pressure the Russian’s to accept our proposals for broader changes to the Treaty, by showing them that we were ready to go all the way, and if they wanted to save anything, they should agree to our proposals. But I don’t think Yoo approved it as a negotiating tactic. I think he saw it as a part of the President’s right to break the law. He argued, earlier in the memo, that Treaties weren’t exactly like laws because the President controlled the negotiating and ratification process (the Senate provides advice and consent, the Pres ratifies and exchanges instruments of ratification) and didn’t need congressional approval to withdraw. All true. But, once the Senate provides its advice and consent and the President exchanges instruments of ratification, the Treaty is the law of the land. If the President doesn’t like it, he can withdraw, but to choose just to ignore parts of it? Not so much. The examples in the memo are cases where we suspended participation after the other side had done something to violate or alter the Treaty first. We suspended provisions in response. Yoo takes that to mean we can suspend them whenever. That’s what’s known, in arms control parlance, as VIOLATING THE TREATY. I guess the Pres could choose to do that, but, he can’t claim its just a temporary suspension. IT’S A VIOLATION, with all the attendant consequences.

Apparently, Bush did not want to bear the international consequences of withdrawing from the Treaty, until they were convinced (rightly) that those consequences would be minimal. And he had tests coming up fast on the calendar, so he had to do something. And a partial suspension seemed to be the answer.

This is like the signing statements, where he signed the bill, making it the law of the land, then said which parts of it he would choose to ignore. Its the law, unless I decide I don’t want to obey. Or, put another way, its like the Senate provides A&C to the CTBT, and the President deposits the instruments of ratification, then gives a speech saying its a wonderful Treaty, but I plan to suspend Article I so we can carry out a nuclear test explosion next month. When we finish that test, we’ll un-suspend the Article, at least until we decide to test again.

Kind of blows up Yoo’s argument that suspension is less awful than withdrawal because it doesn’t alter the structure or substance of the Treaty….

The precedent set by a partial suspension would have made it impossible for us to ever negotiate another arms control treaty. Who would sign up with us, knowing that we reserved the right to violate at will by “suspending” parts of the Treaty?

Last post ’til I return…

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