May 12, 1997 | Executive Memorandum on Missile Defense
The Clinton Administration recently proposed a new agreement to replace the original partner (the defunct Soviet Union) of the United States in the original Anti-Ballistic Missile (ABM) Treaty with four successor countries: Belarus, Kazakhstan, Russia, and Ukraine. This agreement would "multilateralize" the ABM Treaty--a substantive change that would require the United States to negotiate implementation of the treaty with four partners instead of just one. In addition, it would leave 11 other countries of the former Soviet Union out of the agreement.
Last week, in considering the Flank Amendment to the Conventional Forces in Europe (CFE) Treaty, the Senate Foreign Relations Committee attached a provision to the CFE Treaty resolution of ratification that would require the President to submit the ABM Treaty successor state agreement to the Senate. The Flank Amendment comes up for a vote in the Senate this week. The committee demonstrated its belief that the Clinton Administration has changed the substance of the ABM Treaty and thus must submit the U.S.-Russian agreement to the Senate for its advice and consent as required under Article II, Section 2, of the U.S. Constitution.
The Clinton Administration wants to strip this provision from the CFE resolution. It asserts that the tentative agreement to establish new parties to the ABM Treaty does not modify the treaty. This assertion is incorrect. By its very nature, the act of converting a unilateral treaty between the United States and the former Soviet Union into a multilateral treaty between the United States and four new countries essentially creates a new treaty. Whether Senators favor arms control or agree with individual changes in the treaty is not the issue. The Senate must uphold its constitutional responsibility and affirm its treaty-making prerogative, and this means retaining the requirement that the ABM Treaty be submitted for approval as a condition of approving the CFE Treaty amendment. If it does not do this, the Senate risks changing the very balance of power in government by forfeiting its role in reviewing and approving treaties; it risks becoming simply a rubber stamp for decisions made by the executive branch.
The Proposed Modifications
The Administration's tentative agreement to establish new successor states as parties to the original ABM Treaty modifies the treaty in five substantive ways:
The Bottom Line: The Senate's Prerogative
The Clinton Administration is beginning to manufacture arguments that are designed to confuse the Senate on the significance of these modifications. These arguments could distract the Senate from asking the essential question: Does the tentative agreement to add new treaty partners to replace the Soviet Union under the ABM Treaty substantively modify the treaty? If so, the Senate must be able to give its advice and consent.
Even a cursory review of the facts demonstrates that the Administration's proposed agreement modifies the ABM Treaty. The Senate does not need permission from the executive branch to exercise powers granted to it by the U.S. Constitution: Put another way, it does not have to accept the quibbling, sophistry, and equivocations of the Clinton Administration before it can take up the issue of ABM Treaty multilateralization. The Senate is its own judge of when and how to exercise its constitutional prerogatives. If the President attempts to make a new treaty without the advice and consent of the Senate, he will risk provoking an unnecessary constitutional crisis. The Senate can prevent this by demanding, firmly and steadfastly, that the President submit this agreement in the proper manner for its advice and consent.