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Public Statements

Executive Session

Floor Speech

By:
Date:
Location: Washington, DC

BREAK IN TRANSCRIPT

Mr. KYL. Mr. President, I would say to my colleague, maybe 10 minutes is all. I wish to respond to four particular points that have been made here.

The PRESIDING OFFICER. The Senator from Arizona.

Mr. KERRY. And possibly Senator Graham had a question, and I thought I would also respond to his question, if he wanted to pursue that.

Mr. KYL. Mr. President, I very strongly support the amendment offered by my colleagues, Senators MCCAIN and BARRASSO. The primary point here is the preamble has created a great deal of confusion and it will create discord between the two parties here--between the Russian Federation and the U.S. Government.

There is a built-in conflict, a big problem. It is a tumor here, and it is going to grow and eventually create a conflict between our two countries that frankly isn't necessary, and that is the purpose for removing this language from the preamble that creates this problem in the first place, that reestablishes the linkage between strategic offensive weapons--which are the subject of the treaty--and missile defenses, which are explicitly not the subject of the treaty.

My colleague Senator McCain pointed out that Secretary Rice had written an op-ed where she said one of the most concerning things--worrisome, I think, was her word--about this treaty is that reestablishment of the linkage which the Bush administration had worked very hard to eliminate. In the Moscow Treaty of 2002 they had eliminated it, making it clear--even though the Russians wanted preamble language or treaty language connecting the two--they were not going to be connected by the United States. We intended to keep our missile defense plans totally separate and apart from any strategic offensive treaty.

The proponents here of this treaty and its language have made some arguments which I think I should respond to briefly. They will probably dwell on some of these again, but I have heard these arguments so far.

One that you hear over and over is that the treaty language is not binding. The simple response to that is: Fine, if it is not binding, then what is the big deal about amending it or simply eliminating this particular provision? Because it is pernicious, it is going to create a lot of problems in the future in terms of disagreements between the two countries--disagreements which are not necessary but which could escalate into a real problem in the relationship between the two countries. So if it is not binding, clearly there shouldn't be a big deal about amending the preamble.

Second, I did hear my colleague from Massachusetts the other day say: Well, these preambles are not that big a deal. They are mostly for domestic consumption. That may be true, but that is a two-way street. We have some domestic consumption here in the United States, too. The American people want the United States to be unconstrained in the development of our missile defenses, and we want to have a little comfort in this treaty that we are not going to be so constrained.

I am well aware of the language in the resolution of ratification, which is simply a statement that says the treaty doesn't limit U.S. missile defenses. That is true, as far as it goes. But, of course, it begs the question of how the Russians interpret the preamble. And they interpret it--as I said 2 days ago, or yesterday, I guess--as a legally binding authority for the Russian Federation to leave the treaty based on its interpretation of extraordinary circumstances, allowing it under article XIV--the withdrawal clause--to withdraw from the treaty if the United States were to deploy missile defenses that qualitatively or quantitatively improve our condition vis-a-vis Russia, which clearly is going to happen if the United States pursues the plans that Secretary Gates has announced.

Of course, the real question is: In view of the Russian objections, will we in fact do that? And that is the pernicious aspect of this preamble. I am afraid, because the Russians have made such a big deal out of this, the Obama administration is backing away from what were announced as our plans for missile developments.

Third, I would point out the fact that this is a problem created by the administration. The Senate gave its advice in the Defense bill last year when we explicitly said don't include any limitations on missile defense. We also added prompt conventional global strike. So this language was negotiated notwithstanding a warning by the Senate that limitations on missile defense could create a problem in our consent to the treaty.

Fourth, the language, as I said, is inconsistent with--that is to say the language in the preamble is inconsistent with announced plans for U.S. missile defense. My colleague Senator Kerry quoted administration officials as saying, well, we briefed the Russians thoroughly on this. No doubt that is true. It also appears to be true the United States has begun to modify our announced intentions with regard to deployment of missile defense.

My colleague Senator Inhofe pointed out that in place of the ground-based interceptors that the Bush administration had planned to deploy in Poland, along with associated radars in the Czech Republic, to complement the ground-based interceptors already in California and Alaska, primarily dealing with the threat coming from east Asia, the administration announced that it would substitute a phased array--or, rather, a phased adaptive approach, which included, at least in its fourth phase, the potential for intercepting ICBMs that could come from Iran to the United States, but also, of course, anywhere else, including Russia.

That would clearly be a qualitative improvement of missile defenses vis-a-vis Russia, which under their interpretation of the preamble would allow them to withdraw from the treaty.

We say no, it wouldn't. Oh no, wait, that was the START I treaty where we said no, it wouldn't. In the START I treaty, the unilateral statement of the United States rejected what the then-Soviets said. The language is almost the same.

The Soviets said: We don't want you to build missile defenses, and if you do, that is a ground for withdrawal from the treaty.

At that point, the United States said: No, it is not.

Did we say that this time? No, not a word. As my colleague Senator McCain said, the United States was silent; instead, in effect saying in our unilateral signing statement: You don't have anything to worry about because we are only going to develop missile defenses good against limited or regional threats. In other words, neither the ground-based interceptor we were going to deploy but President Obama pulled back from Europe nor the phased adaptive approach, which, in its final phase, could be effective against a Russian ICBM--apparently neither of those is going to be deployed.

The administration did not make an announcement to that effect, but they did appear to confirm it when they briefed, in Lisbon a couple of weeks ago, the NATO allies and Russia that the first three phases of the phased adaptive approach would be deployed, but the magic language wasn't used on

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the fourth. They just said it would be available. Which is it? Are we, in fact, pulling our punches already before the treaty is even ratified because the Russians have objected to it? Isn't this exactly what Secretary Rice warned us about, saying she was worried that we had to, in this treaty, do something about the fact that the Russians had reconnected defense with offense?

That is exactly what the McCain and Barrasso amendment would do. It takes out this language which raises the question, the confusing interrelationship language between missile defense and missile offense, and it strikes the language that says that current U.S. missile defense is not a problem--of course laying open the whole question of whether what we do in the future will be a problem. That is what the McCain-Barrasso amendment would do.

(Mr. WARNER assumed the Chair)

Mr. McCAIN. Will my colleague yield for a question?

Mr. KYL. I will be happy to yield to my colleague.

Mr. McCAIN. The amendment, as you know, strikes the language in the preamble. There are some who allege that a letter from the President--a strong letter from the President--would suffice to address this issue. I wonder what the view is of the Senator from Arizona as to how binding and how impactful that would be as opposed to the existing language which exists in the preamble?

Mr. KYL. Mr. President, I thank my colleague for the question because it sets up a perfect reason why this amendment is necessary. The Russians interpret the preamble as the basis for their legal argument that they can withdraw from the treaty if we do what Secretary Gates has said we are going to do. What would a letter from the President potentially say? Either it is going to say we intend to go forward and develop and deploy the missile defenses--which would be seen by the Russians as contrary to their national interests, their supreme national interests, thus further laying a foundation for them to withdraw from the treaty--or the President would confirm the briefing at Lisbon and confirm the U.S. signing statement and say that we don't intend to deploy those, we only intend to deal with limited or regional threats, so the Russians have nothing to worry about. The Senate would be on record in an understanding accompanying the treaty that confirmed all of this. The Senate would at least be on record. But that doesn't commit the President.

I think the only answer to avoid the confusion and to avoid any future President having pressure from the Russians that they are going to withdraw is to just remove the language. That is the beauty by the author of the amendment--it pulls the thorn so the sting no longer can exist.

Mr. GRAHAM. Will the Senator yield? As we play this out, I think there is a lot of bipartisan agreement that the United States needs to develop some form of missile defense. I know Senator Kerry does agree. I am sure the President does. We all live in a very dangerous world. The idea of a missile coming from Iran or North Korea or some other rogue nations is a reality. It is a different topic to talk about neutering a first strike from the Russian Federation.

But the idea that an intercontinental ballistic missile coming to the United States from some rogue nation such as Iran or North Korea--does my colleague believe that is a possibility in the future?

Mr. KYL. Mr. President, I certainly do, and obviously our defense planners worry about that as well.

Mr. GRAHAM. And I believe the President of the United States believes that too.

Mr. KYL. Yes.

Mr. GRAHAM. Here is the problem, and correct me if I am wrong. If we enter into this treaty and the preamble is not clarified or stricken, there could come a point down the road, as we develop these systems to defend against what we all agree is a real national security threat to the United States, what damage would it do to our relationship and what kind of conflict would it create or anxiety in the world at large if the Russians say: We are going to back out of the treaty, because that is the one thing you do not want to happen. You do not want to sign a treaty where you are going to do A, and if you do A, they back out because you put the world in a state of confusion and danger. The idea that all the papers in the world would one day read: Russians back out of strategic arms limitation treaty because of U.S. deployment of missile defense--to me, that is something we need to deal with with certainty because if that day ever came, it would really be an unnerving event.

It is clear to me that the Russians have taken the preamble language to mean that we have limited ourselves. It is clear to me that the President is trying to say we have not limited ourselves. Senator Kerry says it, I say it, you say it. But if the Russians do not agree with that, it would be better not to do the treaty, in my view, than it would be to create an illusion that the world is safer and have that illusion destroyed.

Just think this through. No matter how much you want a treaty, the worst thing that could happen, in my view, is that two major powers with nuclear weapons sometime in the future have a falling out. That is where we are headed if we do not get this right.

To my colleagues, this is a big event. It is a big moment in terms of our relationship with Russia. But you should not sign a treaty when there is a high likelihood, if we do what we think we need to do, that it will put them in a spot of having to withdraw. That has to be settled.

Taking the preamble out--if we took it out and they still signed the treaty, that would make sense. If you leave it confusing, then you are asking yourself for a heartache down the road. Do you agree with that?

Mr. KYL. I certainly do.

I will terminate my conversation here by also adding one other point to my response to my colleague from Arizona about a letter from the President. The problem right now is

that such a letter, if it confirmed we were going to move forward with a missile defense system adequate to protect the United States from an ICBM, from more than regional threats, would directly contradict our signing statement. What the President would have to do is say: I hereby reject or repudiate the signing statement that the State Department attached to the treaty when we signed it and state the U.S. position instead as--and then lay out his commitment to deploy a defense system adequate to protect the United States from an ICBM.

Mr. SESSIONS. Will the Senator yield?

Mr. McCAIN. While the Senator still has the floor, one additional question for my colleague. As we all know, there is nothing more important, probably, that comes before this body than the ratification of treaties. Our Founding Fathers reserved it for the Senate alone.

This treaty is obviously of significant importance--not just the treaty itself but the impact it has around the world. There is certainly something to the allegations that are made, the comments that are made that this could affect U.S.-Russian relations. I think the Senator from South Carolina and you and I--every Member of this body is very aware of the absolute importance of this treaty and for us to make the decision strictly based on the merits or demerits of this treaty.

The reason I ask my colleague this question is that allegations continue to swirl that there is going to be a vote for or against because of another piece of legislation or for other reasons, for other political reasons. I reject that allegation. I wonder if my colleague from Arizona does as well. I know every Member of this body is making a judgment on this treaty on its merits and their view of its merits or demerits and its importance to the future security of this Nation. And I hope, my colleague from Arizona, that I cleared that up, and I hope my colleague from Arizona will too.

Mr. KYL. Mr. President, I could not agree more with my colleague from Arizona. There have been rumors swirling around here for 3 weeks--for example, when the tax legislation was being negotiated--that somehow or other there was some deal in the works to trade the extension of the existing tax rates for support of the START treaty. There was never any kind of a deal like that going on. No, this treaty stands or falls on its own merits.

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The other thing I would say, however, is that I have made the point for a long time that one of the impediments to ratifying this treaty or to debating it and considering it in a meaningful way was the intersection of all of the other business that was being put before the Senate, much of it very partisan, and that it was very difficult. My colleague from Arizona was right in the middle of a sentence a while ago when he was interrupted by another colleague to say that we have some intervening business we have to do. That is the problem. If we are going to debate and consider the treaty and be able to do it in the thoughtful and focused way it really deserves, then we should not have all these other items come popping in and out of the Senate. We are on the treaty for 2 days and then going to be off of it for 2 days, back on it again for another day, and meanwhile now we are voting on this and that and the other thing. That is what I was contending would preclude us from ever really getting to the point where we had time to do the treaty and to do it right. I think my predictions were very correct.

Mr. SESSIONS. Will the Senator yield for a question--Senator Kyl. You have been a practicing lawyer and a successful one. You negotiated a lot of agreements here in the Senate.

To follow up on what Senator Graham said, it seems to me that at the very heart of this treaty is a very apparent misunderstanding about the meaning and ability of the United States to deploy a missile defense system. When two serious parties enter into negotiations on a matter as serious as nuclear weapons, isn't it a basic part of a good agreement that there are no misunderstandings on important issues?

It seems to me quite clear from repeated Russian statements that they are taking a position very fundamentally contrary to the one the United States should be taking.

Mr. KYL. Mr. President, I am glad to respond to that and summarize this again. Yes. Any lawyer--and we are both lawyers here--knows that if you have an ambiguity in a contract, you are asking for trouble. You are asking for litigation or dispute down the road.

It may not be all that important between two parties or two companies, but when you have two major countries such as Russia and the United States with a lot of tenuous relationships--there are a lot of things on which we agree and some on which we do not agree, very important matters that can arise. If you have a major dispute between the countries, you can affect international relationships not just between the two of us but affecting a whole lot of others in the world as well. You do not want to build in potential conflicts.

There is a double conflict here. The first conflict is between the United States and Russia. The Russians say: If you improve your missile defenses, we get to withdraw from the treaty.

The State Department signing statement says: Don't worry, we are only going to protect against regional or intermediate range threats. But the White House, at the same time, talks about having a letter from the President, or a statement from maybe the Secretary of Defense or somebody, that says: But we are, in fact, going to go forward and develop these kinds of missile defenses, which would, in fact, qualitatively improve our position vis-a-vis Russia.

So not only do we have a disagreement with Russia, we have a disagreement within our own government about our intentions. I do not think the Senate can ratify a treaty with all of this uncertainty out there. We do not know what this country intends to do. There are enough confusing signals that there is not only a potential for a dispute between Russia and the United States but between the Congress and the Obama administration.

BREAK IN TRANSCRIPT

Mr. KYL. If the Senator will yield briefly, I ask to speak for just 60 seconds. I want to make it clear that I don't think anybody on this side holds Senator Kerry accountable for the fact that this is a confusing and back-and-forth kind of debate between the START treaty and other issues on the floor.

Also, I started to say about 3 weeks ago that, knowing that other people would try to bring issues to the floor, and knowing that we had a lot of other business we had to conclude, I could see this situation developing where despite the best efforts of Senator Kerry and others, it would be very difficult to have the kind of debate we needed on the START treaty.

Unfortunately, my prediction has come true. It has been very difficult because of the intercession of all of these other issues. But Senator Kerry bears no responsibility. The decision to move forward is a joint decision by all of the people on the Democratic side. That, I think, was the critical decision that got us into this problem.

BREAK IN TRANSCRIPT

Mr. KYL. Madam President, I had hoped to be able to respond to some of the things the chairman of the committee said earlier. A lot of words have been spoken in between what he said and what I will say now. I think I have correct what his arguments are. If I don't, I am sure he will set me straight. Let me respond to some of the things Senator Kerry talked about.

One of the most significant is this. It is the question of whether the preamble is important. Is it binding. Is it significant. While on the one hand the argument is made that it is an insignificant instrument, it is not binding and it is a throwaway statement that is sometimes done for domestic consumption, it has also been portrayed as a treaty killer. Both of those things cannot be true. It cannot be insignificant but also be so important as to be a treaty killer. I suppose it is possible for one side to treat it as insignificant and the other side to treat it as very significant. Thus, insofar as the Russians are concerned, it is a treaty killer. That is obvious because it means something to the Russians. That is the point. We have to appreciate the fact that they have set this up so that the preamble, combined with their unilateral statement, represents the case that they make legally for withdrawal under article XIV, if we develop missile defenses that they believe qualitatively improve our situation vis-a-vis themselves.

That is the importance of it. It is important whether they are laying the predicate for withdrawal from the treaty. Think of it. You have two parties to a contract. There is a dispute about what a critical term in the contract means. One party says: It is not that big a deal. The other party says: Yes, it is. That enables me to vitiate the contract. That is a big deal, because it sets up a future conflict. That is precisely what the problem is in the preamble. So we can't say on the one hand it is insignificant and on the other hand it is a deal killer, a treaty killer.

Second, it is true that either party can withdraw, but only under certain circumstances. When Senator Kerry makes the argument that the Russian threat of withdrawal is not that important because obviously either party can withdraw, that is only true as far as it goes and misses the point. The Russians are setting up, in the instrument, in the preamble and in their unilateral signing statement that accompanied the signing of the treaty, the ground for withdrawal. What they have said is they believe that if we develop our missile defenses, as we have said, then that constitutes the extraordinary circumstances that would give them a right under article XIV to withdraw. So while it is true that either party can withdraw, the question is, is it a withdrawal that is important, that is significant, that we can't ignore, or is it something they will do no matter what and there is nothing we can do about it?

Let me tell you why this is important and go back to the START I treaty. What countries say about these treaties is very important. It sets the groundwork for their approach to foreign relations vis-a-vis each other and, frankly, the position they take. For years the Russians had tried--before them, the Soviets had tried--to get the United States to cut back on or eliminate our missile defense plans. This was the whole point of the famous Reykjavik moment when Ronald Reagan, as much as he would have liked to have rid both sides of their nuclear weapons or as many as possible, nevertheless when it came right down to it, didn't take the deal that Gorbachev offered him which was: You eliminate missile defense and we will eliminate our strategic offensive weapons. I will come back to that in a moment. But it makes the point that the Russians for a long time have been trying to get us to link missile defense and offensive capabilities.

When that occurred in the START I treaty, our negotiators pushed back very hard. Here is what the United States unilateral statement was in response to the Russian statement. And the reason I quote this is because it is diametrically opposed to the approach our negotiators took with respect to
this New START treaty. Here is the United States unilateral statement at that time:

While the United States cannot circumscribe the Soviet right to withdraw from the START treaty if it believes its supreme interests are jeopardized, the full exercise by the United States of its legal rights under the ABM treaty--

The treaty that permitted us to have missile defense--

as we have discussed with the Soviet Union in the past, would not constitute a basis for such withdrawal.

In other words, directly contradicting the Russian claim that they could withdraw on that basis.

Continuing the quotation:

The United States will be signing the START treaty and submitting it to the U.S. Senate for advice and consent to ratification with this view.

In addition, the provisions for withdrawal from the START treaty based on supreme national interests clearly envision that such withdrawal could only be justified by extraordinary events that have jeopardized a party's supreme interest. Soviet statements that a future hypothetical withdrawal from the ABM Treaty could create such conditions are without military or legal foundation.

In other words, the United States rejected the argument that the Russians were making, that the United States withdrawal from the ABM Treaty would constitute a legal right of withdrawal for the then-Soviet Union.

You can argue about the merits of that. But the point is, we did not want to leave unresponded to a view of the Russians that we thought was fallacious, that was antithetical to the interests of a good relationship between the two countries, or that could potentially impact our decision on whether to stay within the ABM Treaty. It was important then to push back. So why did not our negotiators in Geneva push back in this treaty when the Russians sought to do the same thing?

My colleague from Massachusetts said: Well, actually Secretary Rumsfeld and even President Bush at one point said we are going to talk to the Russians about our missile defense and strategic offensive weapons. That is true. However, the United States was never prepared to take a position that those two items should be linked in the treaty.

As Doug Feith, the former Under Secretary of Defense, who actually helped to negotiate the treaty of 2002 with the Russians, wrote in the Wall Street Journal recently that when his Russian counterpart said we need to have missile defense tied into this treaty, Doug Feith said no. And he said: Well, we have to have a treaty to establish the structural relationship between our two countries. Doug said: No, we don't. We have relations with 200 countries. We have no treaty like this to establish a structure for our relationships. Doug said: Look, we don't need a treaty with you to bring down our weapons. We are going to do it anyway. If you want a treaty to conform your withdrawal and ours, that is fine. But we are not going to concede missile defense to you. And the Russians finally backed off.

The point was, in these situations we did not allow the Russians to successfully make this linkage. But in this case, we not only did not push back but we issued our own unilateral statement that essentially confirmed that we were not going to push the issue with the Russians because our missile defenses would only be good against ``regional or limited threats'' was the language that was used.

This is a problem because while it is true that the resolution of ratification has some language relative to the establishment of our missile defenses--by the way, let me quote what was not in the language but was offered by Senator DeMint at the time. What Senator DeMint said was that:

Accordingly, the United States is and will remain committed to reducing the vulnerability to attack by constructing a layered missile defense system capable of countering missiles of all ranges.

The administration was not agreeable to that. They did not want language to say we were committed to this. They insisted on saying instead that we were free to do it. That is part of the problem. We do not know what this administration's real commitment is to the development of such a system. What we do know is that we should not allow the Russians to believe they have a legal right to withdraw from the treaty based on our future development of missile defenses, because they might well threaten to do that. And if they do, it becomes a big deal whether the United States says: Fine, leave the treaty, because we are going to develop these missile defense instead or a President says: Well, I am afraid you are going to leave the treaty, so maybe I will pull my punches and we will not develop the missile defense. That is the problem here.

Condoleezza Rice, in an op-ed in the Wall Street Journal, on December 7, made precisely this point. Here is what she said. After saying on balance she would support the treaty, she said:

Still, there are legitimate concerns about New START that must and can be addressed in the ratification process.

And here is the second point she makes:

The Senate must make absolutely clear that in ratifying this treaty, the U.S. is not reeestablishing the Cold War link between offensive forces and missile defenses. New START's preamble is worrying in this regard, as it recognizes the ``interrelationship'' of the two.

Further: Administration officials have testified there is no link and the treaty won't limit our missile defenses.

She says:

Congress should ensure that future Defense Department budgets reflect this.

Continuing:

Moscow contends that only current U.S. missile defense plans are acceptable under the treaty. But the U.S. must remain fully free to explore and then deploy the best defenses--not just those imagined today. That includes pursuing both potential qualitative breakthroughs and quantitative increases.

I have personally witnessed Moscow's tendency to interpret every utterance as a binding commitment. The Russians need to understand that the U.S. will use the full range of American technology and talent to improve our ability to intercept and destroy the ballistic missiles of hostile countries.

She is saying that the preamble is especially worrying in this regard and we need to do something about it. That is what the McCain-Barrasso amendment does. It removes that thorn, it removes that issue, that potential conflict between Russia and the United States if we do go forward with the missile defenses that most of us would hope we intend to do.

Two final points, I think.

Senator Kerry made the point that it is merely a statement of fact that there is a relationship between offense and defense, and in one sense it is true. It is a statement of fact there is a relationship between the two. The point, however, is in a diplomatic agreement here between two countries, it is not always appropriate to acknowledge a particular fact if the purpose of that by one of the parties is to build a foundation for later withdrawal from the pact.

We have never conceded in an offensive weapons treaty a relationship that could infer a quid pro quo between missile defense and strategic offensive weapons, and President Reagan explicitly rejected it at Reyjjavik.

My colleague points out that at least in his view one side should never have an advantage over the other or there is an arms race that will occur. I do not agree with that. I think we should have an advantage. I think we should have missile defense. That is the moral response. That is what Ronald Reagan believed.

To the extent the question is: Must the United States give up missile defense as a condition to reducing offensive weapons, President Reagan was willing to take a chance on a new arms race, knowing that the Soviets could not afford to do it. And they did not. He took the chance, and I think it worked out rather well.

So I think to the point of: What is the harm in recreating this relationship, that is the harm, and Condoleezza Rice has made it very clear that in our ratification process, we should eliminate that harm, specifically by pointing to the preamble, and that is what the McCain amendment would do.

A final point. I do not think this requires much elucidation. The question is, What do the Russian officials say? I do not think we need to spend a lot of time on arguments that they believe this would give them a right to withdraw from the treaty. But there was one comment made by my colleague that: Well, who are you going to believe, the Russians or the United States?

The point is, on Russian intentions and interpretations, I would take into account what the Russians have said. And without going into a long, detailed explanation, here are a few headlines, and maybe quoting from one article. Headline--this is near the time of the signing of the treaty, right at about the time. This is April 6: ``Lavrov: Russia may pull out of nuke deal if U.S. expands missile defense.'' There are a lot of other headlines and articles that point out the same thing. Here is Bloomberg Business Week: Russia may exit accord if U.S. pursues missile plan. That is according to Defense Minister Sergei Lavrov.

Let me quote a couple things he said, and then I do not need to make this point further because I do not think it has been seriously questioned that the Russians have made it very clear of their intention that the preamble sets up the condition, along with their unilateral statement, for the extraordinary circumstances that would allow their withdrawal under article XIV. This is the article I will put in the Record. It is from foreignpolicy.com, and I will ask to put it in the Record. But I will quote from it here:

It appears that Russian Defense Minister Sergei Lavrov isn't quite ready to pop the champagne on the new nuclear arms reduction agreement due to be signed in Prague this week.

Russia will have the right to exit the accord if ``the U.S.'s build-up of its missile defense strategic potential in numbers and quality begins to considerably affect the efficiency of Russian strategic nuclear forces,'' Lavrov told reporters in Moscow today.

Going on in the article:

The issue of missile defense was the major sticking point in negotiations over the treaty, particularly after the United States announced plans to build new facilities in Bulgaria and Romania.

Recall that was after the withdrawal of the radar from the Czech Republic and the missiles from Poland.

Continuing on with the article:

As FP's Josh Rogin reported last month, a workaround solution to the issue was reached, in which the issue of missile defense is not mentioned in the body of the treaty itself, but discussed in the preamble sections written by each side. The Obama administration has been adamant that the treaty does not limit the U.S. right to expand missile defense, and will likely make that case to skeptical Senate Republicans. Lavrov, apparently, didn't get the memo:

Russia insists that the agreement includes a link between offensive and defensive systems.

``Linkage to missile defense is clearly spelled out in the accord and is legally binding,'' Lavrov said today.

Madam President, I ask unanimous consent that the text of this article be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Lavrov: Russia May Pull Out of Nuke Deal if U.S. Expands Missile Defense
(Posted By Joshua Keating)

It appears that Russian Defense Minister Sergei Lavrov isn't quite ready to pop the champagne on the new nuclear arms reduction agreement due to be signed in Prague this week:

Russia will have the right to exit the accord if ``the U.S.'s build-up of its missile defense strategic potential in numbers and quality begins to considerably affect the efficiency of Russian strategic nuclear forces,'' Lavrov told reporters in Moscow today.

The issue of missile defense was the major sticking point in negotiations over the treaty, particularly after the United States announced plans to build new facilities in Bulgaria and Romania.

As FP's Josh Rogin reported last month, a workaround solution to the issue was reached, in which the issue of missile defense is not mentioned in the body of the treaty itself, but discussed in the preamble sections written by each side. The Obama administration has been adamant that the treaty does not limit the U.S. right to expand missile defense, and will likely make that case to skeptical Senate Republicans. Lavrov, apparently, didn't get the memo:

Russia insists that the agreement includes a link between offensive and defensive systems. ``Linkage to missile defense is clearly spelled out in the accord and is legally binding,'' Lavrov said today.

Despite it's best efforts to separate the issues of arms reduction and missile defense, Russia doesn't seem likely to let its opposition to the new system go. Lavrov knows that ratification of the treaty won't be a cakewalk for the Obama administration and that his statements can be used as ammunition by the treaty's opponents. So while Obama and Medvedev may put pen to paper this week, the next stage of the missile defense fight is just beginning.

Mr. SESSIONS. Will the Senator yield for a question?

Mr. KYL. Sure.

The PRESIDING OFFICER. The Senator from Alabama.

Mr. SESSIONS. I say to Senator Kyl, you, as a lawyer, have negotiated agreements. It seems to me, what I hear you saying is, the United States enters into a binding treaty, equivalent to a party entering into a binding contract, but the other party has laid a groundwork that allows them to exit the treaty and the contract whenever they want to, in essence. Is that correct?

Mr. KYL. Madam President, that is the point I am making, and in contrast to the START I negotiations, where when the Russians said essentially something very similar to this, we pushed back and said: No, you are wrong, that would not be an appropriate reason to withdraw from the treaty. This time we did not do that. We let it pass, therefore, I would suggest, tacitly accepting the legal position of the Russians.

Mr. SESSIONS. Further, it is not a question of whether the U.S. diplomats and negotiators are telling the truth and the Russians are not telling the truth. It is a question of, is there a meeting of the minds? It is a question of what is in the Russian mind as to whether they could have a right to leave the treaty if we proceed with the missile defense?

The PRESIDING OFFICER. The Senator from Arizona.

Mr. KYL. Madam President, that is correct.

Mr. SESSIONS. I thank the Chair.

Mr. KYL. Madam President, that concludes the point I am making, and is well made by Senator Sessions right now. That problem can be cured by the amendment that would fix the preamble by eliminating the words that create this conflict. I think that is something we should do by adopting the McCain-Barrasso amendment.

The PRESIDING OFFICER. The Senator from Massachusetts.

Mr. KERRY. Let me ask my colleague from Arizona something, if I can.

I do not think--I do not think--that it is necessary for us to actually have the divide that is sort of being drawn here over this issue of this preamble, given what the preamble says, and also measured against the realities of this treaty, and without the preamble.

Let's pretend for a moment there is no preamble. I will come back to the preamble in a minute. But let's pretend there is no preamble, and we go ahead and we do a very extensive layered defense, as we are planning, and somewhat, and the Russians do not like it. Even without the preamble, is it not true that according to article XIV, paragraph 3, they have a right to say: ``That is going to alter the balance of power. If you do that, we do not like it, we are pulling out of the treaty''? Each party shall in exercising its national sovereignty, have the right to withdraw from the treaty if it decides that extraordinary events related to the subject matter of this treaty have jeopardized its supreme interests. It shall give notice of its decision to the other party.

And that is it. They are out. In 3 months, they are gone. Is that not true?

The PRESIDING OFFICER. The Senator from Arizona.

Mr. KYL. Madam President, I say to my colleague, the answer is, yes and no.

Mr. KERRY. Whoa, whoa. It is true they have the right to withdraw; is it not? There is no yes and no. They either have the right to withdraw or they do not. Do they have the right to withdraw?

Mr. KYL. The answer is that while they have the right to do anything--

Mr. KERRY. Do they have the right to withdraw? Madam President, that is the question.

Mr. KYL. Madam President, I say to Senator Kerry, you have asked me a serious question, which requires more than just a yes or no answer.

Mr. KERRY. OK.

Mr. KYL. The answer is, under the terms of the treaty, they have a right to characterize something as an extraordinary event which qualifies under the terms of the contract between the two parties to withdraw. And it is also true that, technically speaking, that is not a decision which we can countermand in any way. In that sense, it is true that they can withdraw.

But it is also true that this treaty, like any other contract, sets up terms

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of reference. One of the terms of reference is the supreme national interest clause or the extraordinary circumstance clause.

We both agree that clause has to be satisfied in order for a party to be proper or to be--or to properly withdraw from the treaty.

When the START treaty--excuse me, if I could finish. When START was ratified, we pushed back against the Russians when they said: Well, this gives us a right to withdraw from the treaty. We said: No, it doesn't. We made it clear to them they shouldn't withdraw under that circumstance. Here, by being silent, in effect, on it, we are tacitly agreeing with their interpretation, and that is dangerous because I would assume we don't want them to withdraw from the treaty, but they have set up a circumstance which is virtually inevitable because we planned to do the very thing they say will give them the right to withdraw from the treaty.

The PRESIDING OFFICER. The Senator from Massachusetts.

Mr. KERRY. I appreciate the answer of the Senator. Let me be clear. There is no language in here, none whatsoever in the treaty, that suggests any measurement or judgment as to the weight or rationale or propriety of their notice. It simply says they shall give notice, and having given notice, automatically, the treaty is over in 3 months. There is no measure. There is no court you go to. There is no measure here. You are out. The point I am making is, no matter what, you can get out.

That said, there is a difference here of opinion. The Senator from Arizona chooses to take these outside statements, which are sending us a signal that obviously they are not going to take lightly to some massive, layered defense that they think affects their offensive capacity. I think the Senator understands that. I am convinced the Senator knows that. He is too smart about this stuff, and he knows too much about it not to understand that if the Russians think all of a sudden we have done something that alters that balance, I believe he thinks they are going to react to that somehow. He has nodded in assent. He does believe that.

So all this nonbinding component says is recognizing the existence of the relationship, it doesn't say they are going to get out. It doesn't say at what point it changes things.

What is more, the record could not be more clear from our unbelievably competent personnel working on this--when you look at the comments of--let me go back to them right now.

I know the Senator from Arizona has respect for LTG Patrick O'Reilly. He is a retired U.S. Air Force lieutenant general, and it is his job to defend America against a missile attack. Here is what he said. He says:

Relative to the recently expired START treaty, the New START treaty actually reduces constraints on the development of the missile defense program. Under New START, our targets will no longer be subject to START constraints.

So--and when Senators ask: Well, why didn't we just extend the original START treaty, apart from the fact the other side said they wouldn't, which is pretty significant, in addition to that, our military didn't want to because they wanted to get out from under the constraints of START. So when the man who is the head of missile defense tells me this treaty, in fact, removes constraints and improves our situation, then you add it to the plethora of other significant statements, from Secretary Bob Gates, from Secretary Clinton, from Admiral Mullen, from General Chilton, from the various other parties, every single one of them says we are not constrained in the type of defense that we can and will build.

All this says is recognizing the relationship. It doesn't restrict us from changing that. In fact, we have stated we are going to. So, obviously, at some point down the road, I assume the Russians are going to say this may be going too far. But it is more than 10 years down the road. So for 10 years we know we have a relationship where we can inspect and we can improve our situation.

I would further say to the Senator: Does the Senator agree at least with the fundamental understanding with respect to treaties that the preamble is not, in fact, legally binding and part of the treaty? Does the Senator agree with that?

Mr. KYL. Madam President, in a technical legal sense, I believe that is the way it is interpreted. I might also make another point, just to correct something--and we can have this debate later if you want to--but it is not true that no changes qualitatively or quantitatively in U.S. missile defenses will occur until after the 10 years that this treaty will be enforced. In fact, one of the most critical questions is whether the GBI systems we have deployed in Alaska and California will be available to be deployed in Europe or on the East Coast or somewhere else in 2015 or whether that will be delayed until 2017. So, clearly, there are--and those are the systems that would be potentially effective against a Russian ICBM.

Mr. KERRY. Fair enough. I accept that. There are some things we will do, and it may be that we had this moment of question mark earlier. That may be. I do know this: We are going to plan to do what is in our interests in the country in terms of our defense, and everybody has said we are committed to proceeding forward.

I want to come to the DeMint language in one moment, but let me finish this question for a second. The Senator agrees this is not a legally binding component he is trying to knock out. The next question is: Does the Senator agree and understand that if you change a comma in what is deemed to be--even though it is not binding, still nevertheless deemed to be the instrument before the Senate--if you change a word, change a comma, you then have to go back to the Russians and you have to negotiate and seek their agreement; does the Senator understand that?

Mr. KYL. Madam President, the answer to the question is, if the Senate, which is supposed to provide its advice and consent--in other words, it is the other half of the equation to the Presidency, and if we are not to be a rubberstamp, and presumably we can take seriously our responsibility to make changes in the treaty or the preamble--if that is our judgment and if we do that, if we eliminate these words in the McCain-Barrasso amendment from the preamble, then the Russians would have to decide either to accept that change or they would negotiate something with the administration that would then be resubmitted, that is correct, and/or there also could be a side agreement that would be entered into.

Mr. KERRY. I agree. But the bottom line is, the Senator has agreed with my statement that we have to go back to the Russians, and that means this treaty doesn't go into force. It also means you don't know what other parts of the negotiation come forward.

So the choice before the Senate is whether you want to take language, which the Senator has agreed is not legally binding, and you want to go back to the Russians and reopen the negotiations for something that doesn't even bind you, when you already have this remarkable amount of evidence saying we are going to go ahead and do what the Senator is interested in doing.

Even further----

Mr. KYL. Would my colleague yield just for one quick question?

Mr. KERRY. I am happy to yield.

Mr. KYL. You said, then, the treaty would have to go back to the Russians. Of course, the Russian Duma is poised to act on this treaty after the Senate does so. The treaty is going to go to the Russians, and unless my colleague is suggesting the Senate has no right to change anything in it, of course, if it is modified, it goes to the Duma and then the Duma decides do they want to accept that change or not.

Mr. KERRY. Madam President, that is a good point by the Senator, and I don't disagree. He is absolutely correct. The Duma does have to ratify this.

But the point I am trying to make is, it doesn't seem worth trying to have that fight--I mean, if this were a matter that went to the core and essence of where we are heading with the treaty, I would say that is different. But it is not binding. If there was something binding here that required us to do something against our will, sure. But

there is no rubberstamp involved in something that has no affect on the actions we have already guaranteed in so many different ways we are going to take. Let me just point out--

Mr. KYL. Would you yield for one quick question?

Mr. KERRY. Sure.

Mr. KYL. If it is not binding, then why does my colleague assume the Duma would have such a hard time accepting the modest change we are proposing?

Mr. KERRY. It is simply a matter of before you get to the Duma, you have to go back and renegotiate this, the treaty doesn't enter into force, and we don't begin what our intelligence community has told us they would like to see happen sooner; the quicker, the better. They want to get to this process.

Moreover, it is also important in another respect. I don't know how much more clear we can be, but I am willing to work with the Senator, and I would love to see if we could sit down in the next hours and come up with something here. We work pretty effectively together, and I think we may be able to do this.

But I don't think these words that are in here are meaningless. In the resolution of ratification, we are saying:

A paramount obligation of the United States Government is to provide for the defense of the American people, deployed members of the United States armed forces, and United States allies against nuclear attacks to the best of its ability. Policies based on mutual assured destruction or intentional vulnerability can be contrary to the safety and security of both countries.

That is a pretty--that is even a new--I was attracted to that, frankly, because Senator DeMint proposed it, and I said: You know, that is not an unreasonable statement for us to make.

Further, we say in the resolution--this is not unimportant:

In a world where biological, chemical, and nuclear weapons and the means to deliver them are proliferating--

This is what our colleagues have been concerned about--

strategic stability can be enhanced by strategic defensive measures.

We are embracing what our colleagues on the other side of the aisle are suggesting ought to be a part of this.

Then, we say--this is the most important paragraph:

Accordingly, the United States is and will remain free to reduce the vulnerability to attack by constructing a layered missile defense system capable of countering missiles of all ranges.

We are saying it. That is what we are adopting when we pass this resolution of ratification.

So not only do we have all our defense establishment, intelligence establishment, and civilian command saying we are going to build this system, not only have we briefed the Russians--and according to our leading general who is responsible for this, who says he briefed them, he told them about the fourth phase and they have accepted it--not only do we have that, but we are going on record saying we have this purpose to change this relationship and we are going to proceed to build this system.

I think that to put the whole treaty, given what is in the resolution of ratification, on the chopping block as a result of a nonbinding resolution, frankly, it just doesn't make sense, and particularly given what the Senator agrees with me is the consequence of having to reenter negotiations, and more important, the Senator agrees with me the thing he doesn't like is not legally binding.

So let's have a vote. Thank you.

The PRESIDING OFFICER (Mr. Udall of Colorado). The Senator from Arizona.

Mr. KYL. I am rather enjoying this colloquy, so maybe I could extend it just a tad longer. Of course, the United States is free--I mean we are not going to ever let another country say we are not free to do something that is in our national interest. But the point is, the administration was unwilling to say we are committed to doing this. I think that makes a very important point.

The whole point of what we are arguing is that the Russians would like to put whatever pressure they can on the United States not to deliver--excuse me--not to deploy missile defenses that could be effective against Russian strategic systems. That has been their goal for decades. I think we can all stipulate to that. They would like to bring whatever pressure they can bear against the United States to avoid us developing those kinds of systems.

Unfortunately, in the negotiation of this treaty, we have opened ourselves to that kind of pressure by, for the first time, not pushing back against the Russians when they tried to make their usual interrelationship between defense and offense and say that if we develop missile defenses effective against them, then that gives them the legal and binding right to withdraw from the treaty. We didn't push back on that.

Instead, our signing statement said: Don't worry. We are not going to develop that kind of system. We are only going to develop systems that deal with intermediate threats or regional threats. So even though the Secretary of Defense had announced a missile defense plan on the drawing board here that would go beyond that, A, we didn't push back. We agreed to the preamble language.

We didn't push back against the signing statement the Russians made. Recently, in the briefing in Lisbon, we seemed to confirm our unilateral statement that we were only dealing with regional or limited threats. Then you can throw in the fact that we pulled the proposed missile defense GBIs, ground-based missile interceptors, out of Poland, and the radars associated with that out of the Czech Republic.

All of that suggests the Obama administration is not as serious about missile defense as we would like them to be, and perhaps one of the reasons is because it will anger or upset Russia. So the more pressure Russia can put on the United States not to do it, the more likely the Obama administration is not to do it. The whole point is a matter of pressure--subtle pressure or bullying pressure, which the Russians are pretty good at too.

If this achievement of the START treaty is so important to President Obama--and I think it is--the question is whether he is willing to jeopardize or risk that treaty if the Russians came to him some time later and said: You are developing something on missile defense that bothers us, and if you do that, we are withdrawing. President Obama might say: Don't do that, we will back off.

The evidence suggests that is the approach this administration may be taking. It is worrisome, as Dr. Condoleezza Rice pointed out. That is why she suggested that we fix that problem in the preamble in the ratification process of the treaty.

Mr. KERRY. Mr. President, let me ask my friend this: First of all, I forgot to include in my comments about what we included with the DeMint language in the resolution, which I think you guys ought to be jumping up and down about which is the following:

The United States is committed to improving United States strategic defensive capabilities both quantitatively and qualitatively during the period that the New START Treaty is in effect, and such improvements are consistent with the treaty.

That is about as boldfaced a statement as we could make about where we are heading. I ask the distinguished Senator from Arizona this: If the President clarified that for the Senator in the next 48 hours, or 72 hours, and he were to make more clear to him--to try to address that question particularly for Senator Kyl, Senator McCain, and others, would the Senator vote for the treaty?

Mr. KYL. Mr. President, that is a good question. I think the answer is, first of all, that I don't think at this moment in time he can clarify it in that regard because he can't predict what concerns the Russians will bring to him and what his response at that point will need to be. If, for example--

Mr. KERRY. With all due respect--

Mr. KYL. Let me finish my point. If we were developing a system which the Russians say will bother them because we could use that against them, and they want us to change it in some way, my best guess is that he will be inclined to change it, even though he wrote a letter to us saying: Rest assured I am committed to developing good, strong missile defense for the United States.

I think the Russians are trying to bully this administration, or future administrations, into a position where we will be less certain to do the kind of things that are just in our best interest because we will have to be concerned about the Russian response.

Mr. KERRY. That is fair. Mr. President, if the Senator wants every eventuality of the future covered, that is a hard one. I think the President of the United States--when he speaks and puts something in writing, in whatever form, or tells a Senator to his face, then gives him his word, that is pretty meaningful where I come from.

Mr. KYL. I am not questioning the President's sincerity or his honesty or his current intentions. But nobody can predict the future. President Obama is smart, but he can't predict out into the future the kinds of things that could be implicated as a result of the agreements that are reached.

To finish my point, the whole problem with this is that the Russians are attempting to create a ground for claiming the legal right, as both of us interpret the term in the treaty, to withdraw from the treaty. Why? For only one reason. It is not to create flexibility, as the Senator said. They have the flexibility. It is to create the pressure to apply on this President, or a future President, not to do what we may want to do because of the concern by the Russians as to how that will affect them.

I don't think one can deny the significance and importance of that kind of diplomatic pressure. When we are asking the Russians to help us with the Iranians or North Korea or some other situation, they can say: That's fine except you are trying to do something we don't like in missile defense and then the President doesn't want to have them withdraw from the treaty and would like their cooperation on something else. These things matter.

In the area of diplomacy, you cannot ignore words in a preamble, though it may not be legally binding. Even as my colleague says, they are so important they could be a treaty killer.

Incidentally, I would like to correct something else. I think I am right on this issue. If we modify the treaty in this regard, I think the question to the Duma is, Do you want to accept this? It is not that we have to go back to negotiations. As a practical matter, we might well do that in order to smooth the relationships. But I think the treaty is sent to the Duma with whatever understandings or amendments we attach to it.

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Mr. KYL. Let me jump in on a couple of points. First of all, it is in my opinion it is incorrect to suggest that the phased adaptive approach is superior to the ground-based or GBI approach. I know there are people in the military who came up here and testified that it was a good idea to do that. Secretary Gates himself said that. I believe, however, if one understood the debate fully, one would appreciate that this was also a political decision made by the President and influenced by other considerations.

This administration has never liked the GBI that the Bush administration developed. It is my opinion that the GBI is more effective than the phased adaptive approach, especially since the administration is not talking about deploying but merely having available the fourth stage. But GBI is a more effective system.

We could have that debate, and I am happy to have that at another time. All I was trying to suggest is that the decision to remove GBI from the plan for Poland and substitute this other approach that is available at a later time, and, in my view, less effective, and also not have the GBI as a contingent backup until 2017, rather than 2015, were mistakes on our part at least, and at worst were decisions made to placate the Russians. That would not be a good thing.

I am simply trying to illustrate the fact that some believe that already in an effort to try to placate the Russians--maybe that is not the right word--try to act in concert with their wishes--choose to characterize it however you wish--the United States has pulled its punches on missile defense. I don't want that to happen.

With this construct, I am afraid that is the kind of influence they would bring to bear. I will ask my colleague a question. Do I understand the Senator to say that if the United States, for example, attaches understandings and conditions to this treaty, if the Senate were to ratify it, and if we make a change in the preamble, that the treaty does not go to the Russian Duma with those conditions or understandings and the change in the preamble but, rather, has to go back to some negotiating process? I thought the process was that the Russian Duma could add its own conditions or understandings and could either accept or reject the treaty as it came to them from the Senate.

Mr. KERRY. Mr. President, the process is that it goes from us under any circumstances, if we have acted on it, to the Government of Russia. The Government of Russia makes the decision as to whether they are going to negotiate and whether it is a substantive kind of change they object to. They may refuse to put it to the Duma or they may want to renegotiate it. It opens it up to renegotiation. It is not automatic. They don't have to send it to the Duma. They can sit on it.

Mr. KYL. I appreciate that clarification. I hope my colleague is not suggesting that, under no circumstances, should the Senate ever change a treaty so that the other party to the treaty would have to, in effect--well, the Senate would never be able to change a treaty. Put it that way.

Mr. KERRY. No, I agree. I already spoke to that. I said if it is in the four corners of the treaty and has fundamental operative impact on us, I would say, OK, we have to go back and do it. That is not the case here. We are talking about an innocuous, nonbinding, and a recognition of an existing reality that the administrations on both sides have already acknowledged. And Dr. Kissinger and others have said ignore the language, it is meaningless. It is simply a statement of the truth.

Mr. KYL. That is my point exactly. If it is no more than that, I cannot imagine that it would be a treaty killer for the Russians unless there was something else afoot.

And that something else--they deem it very important. Why? This is the legal grounds for them to withdraw from the treaty. That is the point.

This is precisely what Lavrov, the Foreign Minister, said. Linkage to missile defense is clearly spelled out in the accord and is legally binding and they talked about their ability to withdraw under article XIV based upon the U.S. improvement of our missile defense qualitatively or quantitatively. That is why it is so important to the Russians.

I don't know if it is a treaty killer because I think there is so much else in this treaty the Russians want, they are not likely to walk away from this if that language is eliminated. But I do think it is important to them because they are trying--this is the first time they have been able to get their foot in the door and establish that linkage, even though in the preamble--not in the body, although they did put article V in there, which also confirms the linkage. It is so important to them that it may be a problem for ratification on their side because then they would not have established this binding legal right to withdraw from the treaty.

Again, as Senator Kerry has pointed out, either side can make up a reason to withdraw from the treaty. But it is difficult for either side not to have a pretext, a legal pretext, and that is what they are creating here. The legal pretext is the United States developing a missile defense system that goes beyond what the Russians think it should vis-a-vis their strategic offensive capability. That is the whole point, and that is the reason for the amendment.

Mr. SESSIONS. Will the Senator yield for a question?

Mr. KYL. I have taken the time here, so I will yield the floor to Senators Sessions and Kerry, if they want to continue.

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