Moscow Treaty - Continued

MOSCOW TREATY—CONTINUED

Mr. BIDEN. Mr. President, let me begin by saying I agree with the Senator from Michigan as well as my colleague from Wisconsin in that I believe—and, as the old joke goes, I have history to prove it—that the Senate has in the treaty power in the treaty clause of the U.S. Constitution an equal responsibility with the President of the United States.

As the old joke goes, if you want to learn a subject, teach it. For the last 10 years, I have been teaching a three-credit course at the Widener University Law School on Saturday mornings on separation of powers issues. In one of the three parts of the course, "What is treaty power? And who has what authority under the Constitution?" I come down clearly on the side that the Senate has the authority to insist that any extension, or withdrawal, for that matter, from a treaty be confirmed by the Senate. We have a right to do that, I believe. But it is an open constitutional question.

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I will, unless we are ready to go to a second amendment, be happy to take a few minutes and go through what I believe to be constitutional law and history on this point.

Let me cut through that for a moment and go to the place where I think it is not worth the fight on this particular treaty. I believe this treaty is so open ended and so, in some sense, amorphous and rests so much upon not merely the goodwill—I assume goodwill on the part of the administration—but on the intensity with which the administration believes this treaty should come to fruition that a provision that marginally increases the substance of the possibility of a substantive outcome which I support—which is getting down to 1,700 or below 2,200—that to jeopardize this treaty that rests on an awful lot on good faith over a genuinely serious constitutional fight which I think someday has to be resolved, that it is not worth the candle on this treaty and may in fact in turn, if we were to prevail—and I don't think we have the votes to prevail, but if we did prevail on this—would be sufficient in my view for this administration to not pursue through the treaty mechanism this agreement.

I want to remind everybody, the administration made it clear from the outset that they did not want a treaty. They did not want to have to come back to us with this treaty.

Because of the steadfastness of Senator Helms, we agreed on the principle that we would insist that any agreement—we knew it was being negotiated in Moscow—be brought back before the Senate.

So my concern is that this agreement, which the administration unilaterally and bilaterally supports—that is, with the Russians or without the Russians, and they don't really much care what we think about it anyway, whether it be in terms of a treaty—that they would be prepared to walk away from this over a genuine, legitimate, significant, constitutional issue and debate.

White House Counsel in this administration and in Democratic administrations who have suggested that Senator Feingold, Senator Levin, and I are wrong about the prerogative of the Senate, I suggest, would be inclined to say to the President: You are going to do this anyway unilaterally—that is, move down to these ranges—you have said you are going to do it anyway; the treaty is so loose, it doesn't bind you much at all anyway; forget the treaty; just proceed on this course, and don't sign onto this principle on this fight.

I was asked by the press how I could not be willing to go to the wall on this issue since I was the guy who went to the wall that resulted in the so-called Biden condition on interpretation of treaties, which was initially added to the INF Treaty in 1988. There was a simple reason. There was a lot more at stake in that treaty in terms of the substantive impact upon the strategic balance and doctrine. We also had a circumstance where the administration very much wanted that treaty. And it was an opportunity to set in law, in principle, the principles of treaty interpretation.
So it was worth the fight, the stakes were high enough, and the administration was not likely to reject the underlying treaty if it passed, which it did. That is the practical distinction I would make.

But let me speak just another 5 minutes or so to the constitutional side of this argument. Although it is not specified in the Constitution, I believe there is a concurrent power both the President and the Senate have; and that is, the power with regard to the termination of a treaty.

Our history for over 200 years of practice is, though, decidedly mixed. At various times in our history, the Congress has directed or authorized the President to terminate a treaty.

On a few occasions, the Senate alone has done that, terminated a treaty. The President has terminated a treaty without prior congressional authorization but then received subsequent approval by the Congress and the Senate. And the President has terminated treaties unilaterally.

For example, Presidents have done so with several commercial treaties in the first half of the 20th century. President Lyndon Johnson gave notice of his intent to have the United States withdraw from a multilateral treaty on international aviation known as the Warsaw Convention. Although this notice was subsequently withdrawn, the Foreign Relations Committee held hearings on the treaty at issue, and did not challenge President Johnson's power to withdraw from it.
More recently, President Carter unilaterally terminated the Mutual Defense Treaty with Taiwan in connection with diplomatic recognition of the People's Republic of China. President Carter also gave notice of the termination of several other treaties, most related to immigration. President Clinton withdrew from multilateral agreements, including our membership in the United Nations's Industrial Development Organization.

The question of who has the power to terminate a treaty has never been definitively resolved by the Supreme Court. President Carter's decision to terminate the Taiwan Treaty was challenged by several of our Republican colleagues, and that case reached the Supreme Court. The Supreme Court decision, though, does not provide much legal precedent, though perhaps it gives us some guidance as to how the Court might rule today.

In Goldwater v. Carter—that was the case about withdrawing from the Taiwan Treaty, when we recognized the People's Republic of China—the Supreme Court vacated a decision of the Court of Appeals of the District of Columbia Circuit, a decision which had affirmed the President's power to unilaterally terminate a treaty.

By vacating the lower court ruling, though, no legal precedent was left to stand. The Supreme Court decision commanded no majority. Four Justices invoked what I know my colleagues on the floor and the Presiding Officer fully understand; they invoked what is called the Political Question Doctrine and thereby decreed the case not a matter for the courts.

The fifth Justice held the case should not be before the Supreme Court because it was not ripe for judicial review.
The only Justice who addressed the merits of the case, Justice Brennan, held for the President's power in that case because he thought termination of the treaty with Taiwan was an act that necessarily flowed from the recognition of the People's Republic of China. He argued further that recognition power is clearly held by the President within the Constitution.

The leading scholarly authority on the subject, the Restatement of Foreign Relations Law, of which the noted scholar, Columbia Law Professor Lou Henkin was a chief reporter, states: "The President has authority unilaterally to suspend or terminate" a treaty "in accordance with its terms, or to make the determination that would justify .    .    . terminating or suspending an agreement because of its violation by another party or because of supervening events." The Restatement concludes that this power of the President is based upon his constitutional power to conduct foreign relations."

The Restatement concedes, however, that the Senate has concurrent authority, and it could circumscribe the President's power by conditioning its consent—which is what I understood in the withdrawn amendment by my friend from Wisconsin—by conditioning its consent to that treaty on a requirement that the termination clause only be exercised with the consent of the Senate, which I happen to think we have the power to do as well.

But without turning this into a seminar—which all of my colleagues understand this full well; I am not educating anybody on this floor as to something they do not already know—without going into any more of it, I believe the Senate has concurrent power it could exercise.

I believe there will come a treaty which is of such consequence that the Senate will determine it must exercise that power. But whether it is wise to do so as is done in the Levin-Feingold amendment is another matter, in my view.

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In closing, I think Senators LEVIN and FEINGOLD raise important legal and substantive concerns. I think it would prompt, in this case—because it goes, in a sense, beyond this treaty the precedent we would be establishing—I think it would prompt—and obviously I don't know—strong executive branch opposition, and all done at this point to make a legal point. No matter how much I agree with it, it is to make a legal point that does not substantively have much impact here. I think it is really better made for a treaty of more substance and consequence than this one.

Let me make it real clear what I mean by that. I do not want to belittle this treaty. I do not mean to imply it is of no value. But I think, quite frankly, if we are to go to the point to take this to the wall, and we were to pass this amendment—and I realize it has been changed now; it is not as consequential as both the Senators would have liked, because the Feingold provision has been withdrawn, and as much as I would like it if we were going to set down a principle here, I think the consequence of its passage, if it resulted in this administration walking away from this treaty, would do much more harm than any possible good could be done by our adopting this amendment.

The point made by the chairman is we are no worse off constitutionally on this unresolved, substantive issue because of the language unanimously added in the committee. So essentially what we are saying here—what I am saying here, and I think the chairman—and I am not suggesting he should associate himself with my remarks as to what the President's and the Senate's power is—but we are basically saying we have agreed to fight this fight another day on another treaty at another time.

How do you define in treaty language what "consult" means? In declaration 6, we use the term "consult," but it needs much less specificity there because it is even more vague. So I think you build in confusion, difficult to define, in even adding the Levin language.

This is an uncomfortable position for me to be in, both intellectually and politically, to be not supporting this amendment. I want my colleagues to understand why. I want to make it clear, even though I agreed with the chairman that I would not, as the ranking member, support amendments beyond what we had agreed to in order to get this done, I want to make it clear to my Democratic colleagues, I am not in any way asking anyone to be bound by that. I am not trying to speak for the Democrats on that issue. I am giving my best advice as to how I think, for what it is worth, we can enhance the prospect that we really will, through this treaty, accomplish a momentum that relates to reducing the number of nuclear weapons each side has at its disposal.

And ultimately, hopefully by the provisions we have in some of the declarations, we will not stop at this treaty. We will not stop at this methodology. We will try to move on to everything, including tactical weapons at some point down the road.

That is my reasoning, for what it is worth. I am not going to support even the less constitutionally controversial provision of the Levin-Feingold amendment for the reasons I have stated.

I pledge to my colleagues, assuming I am around and assuming we have the opportunity, God willing, to be able to establish this principle on a really significant agreement that we make, a mutual agreement or multilateral agreement with other parties in the world that promotes everything from arms reduction to our interest, this fight has to be made at some point. I just don't think it is worth the candle on this at this moment.
I yield the floor.

Mr. BIDEN. Mr. President, I have a minor point, but the RECORD should be clarified. When I was referring to what my friend from Michigan said about the difference between the declaration and his condition—one being binding, one not—I referred to the word "consult." It goes beyond that. The ambiguous language really is in the declaration. In his proposal is "any action relevant" to paragraphs 2 or 3 of article 4 of the treaty, which is the action relevant to the extension or withdrawal—that is the language that was taken by him, properly so, from the declaration, and that is the part that is ambiguous, not the word "consult."

At any rate, it is a distinction without a great difference.

I suggest the absence of a quorum.

Mr. BIDEN. Mr. President, I will be very brief. Let me, as we say in this body, associate myself with the remarks of my colleague and say it in a slightly different way. The Senator is asking us to have the intelligence community monitor something that there is no capacity to monitor because there is no provision in the treaty requiring the monitoring. It is a little bit like saying we would like the President to report to us, on a yearly basis, the cost of the destruction or dismantling or taking off of alert or removing from a silo every missile that is removed by the Russians.

That would be great, but it is not in the treaty. There is no provision.
Regarding the ultimate criticism, the primary criticism the Senator from Massachusetts makes of the treaty is accurate. There is not much to this treaty. There is not much to it. As I said in my very long opening statement, the administration, when they testified before the committee, said: Look, we were going to do this anyway. We were going to do this anyway. So we told the Russians, in effect paraphrasing the Secretary of State, we told the Russians if you want to come along, come along; if you don't, you don't.

The whole rationale of this administration is the bet that the cold war is over, it is truly and forever behind us. I hope they are right. This treaty affords few protections in the event of a heightened mistrust that develops, or a crisis. It doesn't have any protections. So we are not kidding each other, between now and 2012 the Russians could go out, if they were capable of doing it financially, and build 10,000 more nuclear weapons. They could dig 40,000 more holes for silos, if they had the money. There is nothing in this treaty that prevents that.

I know we are all railing against what the treaty should have been; what, if we personally were negotiating it, we would have done. But, unfortunately, I say to my friend from Massachusetts, he has a tough call the rest of us must make. If you don't like what is in it, and there is a great deal that is not in it that we would like to have in it, vote against it. Vote against it. But you can't fix something that is not broken, in effect—the treaty has no verification. It has no requirement the warheads be destroyed. There is no requirement they be accounted for. There is no requirement that there, in fact, be any progress shown until December 31, 2012.

If you view all of these deficiencies as fatal flaws, then vote no, just flat vote no because you cannot fix them. You cannot fix them. The only way I think we could fix them is if we get the administration and Russia and the United States on a positive track here. We have them on a track. The track is that upon which we have agreed. As Sam Nunn said, this is a good-faith treaty. That is the bottom line.

The reason I am for this treaty is failure to ratify it, I believe, will be read as bad faith. Ratifying it demonstrates good faith, and our hortatory language—the message we have sent personally in terms of each individual Senator speaking to the administration—the language in our declarations and conditions and the amendments on the floor makes it clear to the administration that there is clearly a majority of Members of the Senate who would like to see more done. We are not criticizing what has been done. We just would like more done.

I understand the frustration. Believe me. I understand the frustration. The greatest concern—and I think we have taken care of it—is if, in fact, the Russians do not have the engineering and/or financial capability of meeting the commitment they have made to reduce their deployed forces, we will help them. That is the best thing we can do. That is what we have done.

I suggest we should support this treaty and we should oppose this amendment.

Mr. BIDEN. Mr. President, if I may respond to my colleague, I am not sure whether condition 2 requires the executive branch to list force reductions or force levels by warhead types. But I certainly think it is a good idea to do so, and I would urge the administration to do so.

In addition, I think the administration should make a decision on warhead dismantlement. Quite frankly, my support for ratification of this treaty is based in part on the administration's assurance before our committee that at least some warheads removed under the treaty will be destroyed or dismantled, and I fully expect the administration to live up to this. So I think the Senator is making a very valid point

Mr. BIDEN. Mr. President, I think that the new relationship between the United States and Russia can only be improved by taking nuclear weapons off alert status. By giving decision makers more time to react to disturbing information, this would lower the risk of a nuclear war caused by one side's mistaken belief that the other was attacking it. I am especially impressed, moreover, by the fact that Gen. Eugene Habiger, former Commander in Chief of the U.S. Strategic Command feels that the time has come to do this. I would note, however, that General Habiger warned that existing specific de-alerting proposals were often not viable.

Mr. BIDEN. The Foreign Relations Committee's report encourages the President to establish a commission of weapon system experts to undertake the review that General Habiger proposed. It adds that if the President does not do so, Congress could usefully act on its own, either to establish such a commission or, perhaps, to commission the National Academy of Sciences to set up such a group.

Mr. BIDEN. I agree with the Senator from North Dakota and the Chairman of the Foreign Relations Committee, Senator LUGAR. During hearings last year on the Treaty of Moscow now before the Senate, several of our distinguished witnesses mentioned Russia's tactical nuclear stockpile, including former Senator Nunn. The smaller size and greater number of these weapons puts them at higher risk for theft by, or illicit sale to, terror networks such as al-Qaida.

Mr. BIDEN. Let me echo the comments on the chairman. After entry into force of the Moscow Treaty, getting a handle on Russian tactical nuclear weapons must be a top arms control and non-proliferation objective of the United States Government. I look forward to joining the chairman in holding hearings on this matter and in writing to the administration with the Senators from Indiana and North Dakota. A comprehensive approach to this problem, as the senior Senator from North Dakota suggests, is sorely needed.