December 16, 2010 | National Review Online
The Transies and the Treaty
Here is what you need to understand about the Republican party’s transnational progressives, folks like Condoleezza Rice, John McCain, Richard Lugar, and Lindsey Graham: They proceed from the premise that it serves our national interests to be willing residents of a Potemkin and reliably anti-American village called the “international community.” That’s why it’s no surprise to find them endorsing the ratification of New START.
We might call the spell they are under Beltway Syndrome. It’s the same spell that tells them it’s better to be bipartisan than right. Beltway Syndrome, reinforced by media hypnosis, convinces those in its thrall that a hapless public is just dying for them to “get things done.” In reality, the public is horrified by most things done in the Beltway and simply wants Washington to stop. This, indeed, was the loud and clear message of last month’s election, which swept lots of small-government conservatives into power: Don’t do anything it is not absolutely necessary to do — it just costs us money, complicates our lives, and degrades our national security.
Unfortunately, the cavalry does not ride into Washington for another couple of weeks. There is still time to make mischief, one example of which is New START, President Obama’s New Strategic Arms Reduction Treaty with Russia.
The Republican transies are lining up behind New START, hoping to ram it through in the lame-duck session of a discredited Congress. Sure, it may be a bad deal for the United States, but it’s so international. If you’ve got Beltway Syndrome, that makes it an occasion for bipartisan cooperation — a Washington “compromise” in which the post-sovereign Left gets its way, American self-determinism takes a hit, and the legacy press doles out the love to those worldly GOP moderates who make it all possible.
In truth, New START is worse than a bad deal. It does nothing to reduce Russia’s huge advantage in tactical nuclear weapons. Instead, President Obama proposes to tie only America’s hands. The reductions and caps apply to strategic nukes, the category in which the United States holds an advantage that Russia, a declining power, cannot hope to dent absent our self-defeating complicity.
But that’s not the half of it. The word “deal” implies a contract, a meeting of the minds. On New START, we already know there is no such thing. Going in, before we ever get to ratification, the Russians have already proclaimed the treaty an ironclad lock against expanded American missile defense. They’ve got the treaty language to prove it, and they are insistent that future U.S. moves to promote our security would scotch the whole arrangement.
The Obama administration claims that this interpretation is wrong. Yet, keeping with standard Obama operating procedure, the White House is refusing to disclose the negotiating record. On a certain level, this is understandable. What’s binding in a treaty — or, for that matter, any agreement or statute — is the formal language the parties adopt, not the sausage-making it took to get there. Nevertheless, where there is ambiguity, as there obviously is in New START, the underlying record clues us in on what the parties understood those ambiguous terms to mean, mutual understanding being the essence of a contract.
More significantly, the Senate’s duty to advise on a treaty before deciding whether to consent to it is a constitutional obligation. And just as important, the Constitution has a bias against treaties: The Framers prescribed the need for international agreements to achieve super-majority approval — two-thirds of senators assenting — because they were appropriately wary of international entanglements. The treaty clause is designed to ensure that the nation signs on only to sensible agreements.
Quite apart from the Constitution and black-letter contract-law principles, one would think the senators’ gigantic sense of amour propre would move them to energetic investigation. After all, during the Bush years, the mere fact that internal executive-branch memoranda existed was enough for Democrats to demand disclosure — and on all manner of things less consequential than a nuclear-arms compact. But that was then, and that was Democrats, whom the Beltway hypnotists hold to a different standard of bipartisanship.
So the GOP transies have a different plan, which Rice — President Bush’s secretary of state — has taken to the Wall Street Journal’s editorial pages to urge. The Senate, she says, should consent to New START, but with caveats to clarify our disagreements with the Russian interpretation of the treaty.
Ah, yes, caveats. This is diplo-speak for papering over the uncongenial fact that an agreement lacks agreement. Caveats, a staple of treaty-making, go a long way toward explaining why the international community is no community at all. The players do not operate under the same laws, values, or culture. To convey the illusion of community — as in “unity” — nations make ever more treaties; betraying the reality that it’s all smoke and mirrors, they then festoon the ratification process with qualifications that dissent from this or that term. These caveats do not actually become part of the agreement. They are, instead, a salve for a senator who’d rather not do his job and vote nay.
The charade seems harmless enough, except when it’s not. Take, for example, the matter of interrogations. In 1984, the international community came together around a treaty called the United Nations Convention Against Torture and Cruel, Inhuman, and Degrading Treatment (UNCAT). The United States had the good sense to stay out of this feel-good exercise for many years. Assaults involving torture were already illegal under various state and federal laws, and the terms “cruel,” “inhuman,” and “degrading” (CID) are hopelessly vague, such that delegating their definition to international bureaucrats would be imprudent, to say the least.
Alas, good sense crashed to a halt during the Clinton administration, which, like the Obama administration and the GOP transies, never saw a treaty it didn’t like. So with Republican help, President Clinton got UNCAT ratified. But what about concerns that CID terms were too vague, that they would place our security at the whim of the left-wing law professors to whom international bureaucrats turn for guidance? No problem, the Senate decided, just add some caveats.
That’s exactly what the senators did. Unable to alter the terms of the treaty, which drew an absurd equivalence between CID and torture, senators convinced themselves that the problem could be solved by stressing that the United States understood the CID term to be a nullity — banning nothing more than what U.S. law already prohibited under the Fifth, Eighth, and Fourteenth Amendments.
If viable, this caveat would have been crucial. Those constitutional amendments generally protect only defendants prosecuted in our civilian criminal-justice system. They ban only treatment that “shocks the conscience,” which means they are situational — what is shocking under peacetime conditions often is not under wartime exigencies. And constitutional rights are (or were at the time) unavailing for aliens detained outside the United States.
When push came to shove, though, the caveat proved worthless. After 9/11, the Bush administration authorized enhanced-interrogation measures which — we now know for a certainty, thanks to the Obama administration’s declassification of the underlying guidelines — came nowhere close to the legal definition of torture. Yet the international community accused America of torture anyway. The U.S. had ratified UNCAT, we were told, and its CID provisions made any type of degrading treatment the legal equivalent of torture.
The transies didn’t want to know from caveats. None other than Secretary Rice was adamant on that score. Speaking in Kiev — before an audience that included those epitomes of humanitarian interrogation practices, the Russians — she boldly declared that UNCAT “prohibits, of course, cruel, inhumane, and degrading treatment.” And she added: “As a matter of U.S. policy . . . [CID] obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.”
Wait a second, many of us countered, what about that caveat? Didn’t the Clinton administration and the Senate assure us that the international construction of CID wouldn’t matter, that we hadn’t signed on to anything that gave new protections to bad actors? Caveat shmaveat, thundered Senator McCain, the United States was violating international law, period.
Bear in mind that by the time Secretary Rice and Senator McCain (echoed by Senator Graham) did their grandstanding in 2005, the enhanced-interrogation methods applied to top al-Qaeda detainees had thwarted terrorist plots, had enabled the capture of high-ranking jihadists, and had saved American lives. Yet these security achievements didn’t matter. In order to appease the international community, we had to pretend that we were ruled by the letter of UNCAT — and if that meant ignoring the Senate’s caveat, then the caveat would be treated as just the empty gesture that it was.
Perhaps we could agree, for argument’s sake, that there are times when caveats might make some sense. Some treaties, like UNCAT and the Geneva Conventions, are wide-ranging, multilateral affairs. Not just two countries, but nearly every country, agrees to be bound. That wouldn’t make any difference to me — as UNCAT shows, a bad deal is a bad deal no matter how many countries agree to it — but one can certainly understand the argument that there may be so much good in a global treaty, and that it may bind so many countries, that a bad term or two is worth chancing. Maybe it’s worth ratifying with caveats in the sunny hope that, if the time comes, American officials will honor the caveats over the treaty language. But New START is not a multilateral agreement. It involves only two states, and they disagree on core elements.
There are a plethora of reasons why New START is a step backwards. Interestingly, Rice’s op-ed lays many of them out. Most consequentially she says, “Breaking the link between offensive force reductions and limits on defense” — i.e., the link the Russians say New START reconnects — “marked a key moment in the establishment of a new nuclear agenda no longer focused on the Cold War face-off between the Warsaw Pact and NATO.” This key moment, she elaborates, enabled us to focus on our protection against attack by rogue nations that were (and are) far more likely than the Russians to use nuclear missiles. Alas, the decoupling of that link is gravely imperiled by New START. By contrast, New START is irrelevant to other salient matters Rice offers as selling points: strategic-missile reduction, modernization of our nuclear arsenal, and on-site verification.
Russia’s strategic nukes will be reduced even if we do nothing, because Russia cannot keep up economically; the cap of 1,550 weapons works only against us. The impediment to modernization of our nuclear arsenal is not Russia; it is President Obama. He is demanding the bad New START agreement as his price for a modernization commitment that cannot be enforced. That’s a net security loss. Better to elect a new president in two years for whom national defense is a priority.
Futhermore, in touting New START’s anticipated reinstatement of “on-site verification of Russian nuclear forces,” Rice erroneously compares it with treaties struck by Presidents Reagan and George H. W. Bush with the Soviets, which she hails for their “meaningful verification” requirements. But the word “meaningful” makes all the difference. New START’s verification plan is not meaningful. Former Reagan administration officials Ed Meese and Richard Perle point that out in a competing Wall Street Journal op-ed, convincingly arguing that President Reagan would never have agreed to something as foolish as New START. Moreover, as Rice’s State Department colleague John Bolton has contended in National Review, it was President Obama who allowed the verification procedures of the former START treaty to lapse, claiming them to be unnecessary. Obama is thus in no position to stress verification as a rationale for a bad agreement whose verification terms are inadequate, and Rice is naïve to cite verification as a point in New START’s favor.
The Senate’s constitutional duty is to reject bad treaties. Caveats cannot camouflage the dereliction of this duty. If the Senate consents to New START, history shows that it will be consenting to the literal terms of a bad treaty, one senators have inexcusably allowed the Obama administration to prevent them from investigating. For the sake of mollifying our unruly friends in the international community, and pleasing transies everywhere who indulge the pipedream of a world without nukes, the Senate will have degraded our security. And that can be said without caveat.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.