The NYT “has them.”:http://www.nytimes.com/2010/04/06/world/06arms-side.html

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…

There is a school of thought in the nonproliferation/arms control/U.S. strategic policy debate that I think can be summed up this way:

In the future, the following international actors will pose credible nuclear threats: terrorists, poor countries, the other nuclear-weapon states, and at least some U.S. allies.

The United States, however, will not.

Generally, I’m not much for metaphors. But “this CSIS report”:http://www.csis.org/media/csis/pubs/080305-murdock-nuclearmission.pdf reminded me of the saying contained in the title of this post, though perhaps “writing checks one’s ass _won’t_ cash” would be a bit more on the mark.

Specifically, I’m talking about the argument that Bush I officials should never have acknowledged the hollowness of veiled U.S. threats before the 1991 Persian Gulf War to use nuclear weapons in response to Iraqi chemical weapons use. The report states:

bq. Whatever the utility of this U.S. nuclear threat…, it was undermined by the memoirs of the senior policymakers involved. President George H.W. Bush and General Brent Scowcroft wrote in their memoirs that they had no intention of using nuclear weapons during that operation. JCS chairman Colin Powell, when asked by Secretary of Defense Dick Cheney about nuclear options, stated: “Let’s not even think about nukes. You know we’re not going to let the genie lose.” It’s hard to make credible threats when you tell the world (including future adversaries) that you were bluffing the last time you made one.

I think the real problem is that the threats weren’t credible, not that people later acknowledged this lack of credibility.

This same attitude toward the truth also reminded me of one of the best exchanges from “Jackie Brown”:http://www.imdb.com/title/tt0119396/:

Ordell Robbie: Goddamn…You told them all that?

Jackie Brown: Its true, ain’t it?

Ordell Robbie: What the fuck that got to do with anything?

Steve Aftergood has the “unclassed exec.summary”:http://www.fas.org/blog/secrecy/2007/10/jason_on_the_reliable_replacem.html of the JASON RRW study. As far as I know, the _Post’s_ Walter Pincus was the first to “report”:http://www.washingtonpost.com/wp-dyn/content/article/2007/09/29/AR2007092901569_pf.html on it. Jon Fox from GSN also has a “good article”:http://204.71.60.35/d_newswire/issues/2007_10_1.html#8216110E on the report.

Bottom line seems to be that the idea of “certifying a new warhead w/o testing” is still in the “not gonna happen” category, at least for now.

It is worth noting that former NNSA head Linton Brooks “said”:http://www.carnegieendowment.org/events/index.cfm?fa=eventDetail&id=1019&&prog=zgp&proj=znpp at the CEIP conference a few months back that the RRW

bq. *will put the final nail in the coffin of nuclear testing* because in the next term when we take a serious look at the Comprehensive Test Ban Treaty, the technical argument against ratification will be taken away by a concept that drives any question of the need to test for future problems out.

Just saying.

Imagined conversation between pilot and ground crew, after a B-52 took off from Minot Air Base and landed in Louisiana with “six cruise missiles carrying W-80 nuclear warheads:”:http://www.spacewar.com/2006/070905200514.7fjgge0b.html

CREW MEMBER: What are those?

PILOT: New boots.

CM: No, _those_.

P: Fuck…

From what Pentagon press secretary Geoff Morrell said, it sounds like the Air Force is enforcing some discipline:

“The munitions squadron commander has been *relieved of his duties,* and final action is pending the outcome of the investigation,” he said.

“In addition, *other airmen were decertified from their duties involving munitions.*

Hans K has much more “over at his place.”:http://www.fas.org/blog/ssp/2007/09/flying_nuclear_bombs.php#more

And “this _ACT_ piece”:http://www.armscontrol.org/act/2007_05/Ballistic.asp?print by Wade has a short discussion about the US decision to eliminate some of its nuclear-armed cruise missiles:

*Former Secretary of Defense Donald Rumsfeld ordered the Air Force last Oct. 17 to decommission all AGM-129 Advanced Cruise Missiles (ACMs) and shrink the force of AGM-86 Air-Launched Cruise Missiles (ALCMs) to 528.* Air Force fact sheets from early 2006 reported the service had approximately 460 ACMs and 1,142 ALCMs.

In March 28 prepared testimony to the Senate Armed Services Strategic Forces Subcommittee, *Air Force Major General Roger Burg said the service would not take “irreversible actions” to demilitarize and destroy retired cruise missiles until receiving “final congressional approval.”* No serious congressional opposition has emerged to the plan.

*Update:*

Big ups to Tristero for the “link.”:http://digbysblog.blogspot.com/2007/09/loose-nukes-followup-by-tristero-if.html

I don’t want to get into the 2K8 race dynamics, but “this”:http://www.armscontrolwonk.com/1603/ruling-out-the-use-of-nuclear-weapons reminded me that, after “the recent Clinton-Obama nuclear flap”:http://www.washingtonpost.com/wp-dyn/content/article/2007/08/02/AR2007080201868.html I thought that someone should ask the candidates if they think it is _ever_ appropriate to use nuclear weapons against NNWS or non-state actors. That might help prevent candidates from using the “take nothing off the table” dodge.

A colleague pointed out a passage that I had failed to notice in the NNSA document I “blogged about”:http://www.totalwonkerr.net/1488/nnsa-report-on-us-nuclear-strategy the other day.

I’m not sure that this was intended, but the passage reinforces the notion that US nuclear weapons are for a lot more than deterring or responding to nuclear atttacks on the United States.

According to the NNSA, “an operational” U.S. nuclear force of 1,700-2,200 strategic warheads

bq. will demonstrate to allies and adversaries alike that the United States has the necessary means, and the political will, *to respond decisively against aggression and the use of weapons of mass destruction.*

Note that the bold part not only includes chemical and biological weapons, but it also seems to draw a distinction between those weapons and “aggression” – presumably, the use of _conventional_ weapons.

Guess you _can_ say something meaningful in three pages…

*Update:*

Jeffrey has “more”:http://www.armscontrolwonk.com/1591/nuclear-strategy-follow-on-white-paper on the forthcoming follow-on to the NNSA paper.

Wade just called my attention to today’s NNSA press release entitled “U.S. Nuclear Weapons Strategy Delivered to Congress”:

bq. U.S. Secretary of Energy Samuel W. Bodman joined the U.S. Secretaries of Defense and State in sending to Congress the Bush Administration’s nuclear weapons strategy. *This document not only describes the history of nuclear deterrence during the Cold War, but reinforces how deterrence applies to present and future security threats, and what a nuclear stockpile of the 21st century will need to look like in order to meet those threats.*

I will likely say more about it later, but you dont really need me to summarize the “document,”:http://www.nnsa.doe.gov/docs/factsheets/2007/NA-07-FS-04.pdf as it contains *three* pages of text.

Hope no one pulled any all-nighters on this. Maybe NNSA just has great word economy.

*Update:*

Nothing really new there, as far as I can tell. The document _does_ promise that the NNSA will produce another “detailed report” that will “lay out the data and methodology used to determine our nuclear weapons force structure,outline knowledge points for measuring progress in transforming our nuclear stockpile, and *dispel a number of myths that have grown up around U.S. nuclear forces.”*

That last part should be hilarious.

I also love that the document names North Korea and Iran but does not name the “*established nuclear powers with aggressive nuclear force modernization programs*” that we’re supposed to worry about.

Why not name France, if that’s who you mean?

*Later Update:*

This post was updated “here.”:http://www.totalwonkerr.net/1488/nnsa-report-on-us-nuclear-strategy

Well, not all of them.

Hans Kristensen has a “great post”:http://www.fas.org/blog/ssp/2007/07/united_states_removes_nuclear.php#more up about the US removal of B-61 gravity bombs from “Ramstein Air Base.”:http://www.ramstein.af.mil/

Hans explains that his claim is based on the USAF’s recent removal of Ramstein from

bq. a list of installations that receive periodic nuclear weapons inspections, *indicating that nuclear weapons previously stored at the base may have been removed and withdrawn to the United States.*

Ramstein had been on the list as recently as 2005.

According to “this NRDC report,”:http://www.nukestrat.com/us/afn/nato.htm 130 nukes were based at Ramstein; 20 are still at the Buchel base. That leaves about 350 B-61s in Europe, says Hans.

p=. *Future of TNWs*

About a year ago, Oliver Meier wrote a “piece”:http://www.armscontrol.org/act/2006_07-08/NewsAnalysis.asp for _ACT_ about the possibility that the European NNWS currently particiapting in nuclear-sharing agreements (Belgium, Germany, Italy, the Netherlands, and Turkey) may stop doing so.

One of the main reasons is that, in the future, they may not have the planes to deliver the bombs. As Oliver put it,

bq. Public statements from and interviews with government officials and experts in Europe indicate that *European governments may not be willing to make the investments in a new generation of nuclear-capable aircraft or participate in relevant technology sharing* that would be needed to sustain the policy.

Different countries, of course, have different policies. In Germany’s case, Berlin is planning to retire the “Tornado PA-200”:http://www.militaryaircraft.de/pictures/military/aircraft/Tornado-PA200/Tornado-PA200.html, the aircraft currently assigned to carry the B-61. Germany is planning to replace those planes with the “Eurofighter.”:http://www.eurofighter.com/ But according to Oliver,

bq. …the German government in July 2004 told parliament…that it *does not intend to certify the Eurofighter to carry nuclear weapons*. Such certification would require Germany and its partners to grant the United States access to Eurofighter technology, which Europeans are reluctant to do because they fear the loss of commercial proprietary information.

Now, Berlin has said that it “might keep some Tornados beyond the expected end of their service life in 2020,” but that’s obviously a temporary fix.

Anyway, read the “whole thing.”:http://www.armscontrol.org/act/2006_07-08/NewsAnalysis.asp