December 21, 2010 | National Review Online

Corker’s Case for START: As Convincing as ‘A Letter from My Mother’

Patting himself and his fellow Senate Republicans on the back for selling out on President Obama’s New START treaty, Bob Corker absurdly claims that all is well because — despite treaty terms that patently disserve our national security — senators have held debates, and because he and Sen. Richard Lugar have drafted a swell “resolution of ratification” that purportedly addresses New START’s serial flaws. Meantime, an unidentified John McCain admirer tells Rich the crafty ol’ Maverick deserves kudos for pressuring Obama into writing a letter talking up missile defense.

Whoopee! Don’t you feel better about the GOP now?

This is the most craven sort of nonsense. These senators are trying to rationalize their inexcusable approval of a bad treaty they lack the backbone to vote down. Holding debates? It’s a commonplace to mock the U.N. General Assembly as a “debating society” because the term connotes how inconsequential its exertions are.

As for the vaunted resolution of ratification, I defer to John Bolton and John Yoo. Writing in the New York Times last month, they explained that the Obama administration hoped to sell its “dangerous” bargain by diverting attention from the treaty itself. Attention would instead be focused on the ratification resolution, which they predicted would be loaded up with “a package of paper promises” — variously called “conditions,” “understandings” and “declarations” — that would purport to address concerns about missile defense, the condition of our nuclear arsenal, treaty limitations on conventional weapons, etc. Ambassador Bolton and Professor Yoo continued:

Senators cannot take these warranties seriously — they are not a part of the text of the treaty itself. As Eugene Rostow, a former under secretary of state, put it, such reservations and understandings have “the same legal effect as a letter from my mother.” They are mere policy statements that attempt to influence future treaty interpretation. They do not have the force of law; they do not bind the president or future Congresses. The Constitution’s supremacy clause makes the treaty’s text the “law of the land.”

Instead, Bolton and Yoo asserted, “[t]o prevent New Start from gravely impairing America’s nuclear capacity, the Senate must ignore the resolution of ratification and demand changes to the treaty itself.” This is exactly the duty from which Senate Republicans are abdicating. The ratification resolution is nothing. The presidential letter Sen. McCain is said to have extracted is less than nothing: it lacks even the patina of a legislative act and is about as enforceable as a presidential commitment to close Gitmo or televise the government’s health-care deliberations on C-SPAN.

The administration is wrong on national-security policy and politically weakened by the midterm thrashing. The treaty is awful, which is why there are so many things to address in resolutions and letters. If you can’t get Republican senators to do the right thing under these conditions, then when?

One more related point. Based on my argument in yesterday’s column that the Senate may not unilaterally rewrite treaties or enact amendments that alter treaty terms, a friend suggests there is daylight between my position and that of Bolton and Yoo. There is none. Yes, Bolton and Yoo recount Senate action that has resulted in treaties being altered, but here’s what they say:

When it approved the Jay Treaty in the 1790s, which resolved outstanding disputes with Britain, the Senate consented only on condition that President George Washington delete a specific provision on trade. Washington and Britain agreed to the amendment, and the treaty entered into force. In 1978, the Senate demanded changes to the text of the Panama Canal treaties as the price of its consent

This is no different from what I am saying. The Senate in these cases did not claim the power to change treaty terms or enact resolutions that pretended to fix deep problems without altering treaty terms. To the contrary, senators told Presidents Washington and Carter that there would be no consent unless they went back to the countries in question and got the problematic terms changed.

The Senate can pass amendments that amplify American understandings about a treaty; the Senate cannot unilaterally alter the core understandings in an agreement — that latter would render it no longer an agreement, and hence not a treaty. Thus did Messrs. Bolton and Yoo conclude: “While the Constitution gives the president the prime role in the treaty process, the Senate has the final say. If 34 senators reject a treaty, no president can override them.”

Voting to reject is the Senate’s duty when confronted with a treaty that disserves the national interests. It is the current Senate’s dereliction on New START — a fact no resolution or presidential letter can paper over.

The full article is available here.