New START, Missile Defense, Treaty Amendments

By Jack Goldsmith
Tuesday, September 21, 2010, 4:27 AM

Last week the Senate Foreign Relations Committee approved the resolution of ratification for the New Strategic Arms Reduction Treaty (“New START), sending it to the entire Senate, where under Article II it requires approval by “two thirds of the Senators present.”  A major concern about New START was that it might limit U.S. efforts on missile defense.  The resolution of ratification (this is the Lugar draft the Committee voted on, minus a few minor amendments added before the vote) addresses these concerns extensively through “conditions” (directives that impose obligations on the President), understandings, and declarations.  One understanding states that the treaty “does not impose any limitations on the deployment of missile defenses” besides the small explicit provisions in the treaty.  A declaration expresses the sense of the Senate that it is U.S. policy to deploy “an effective National Missile Defense System” as soon as possible.  And a condition requires the President to certify to the Senate that the treaty does not require the U.S. to give Russia “telemetric information” concerning missile defense-related launches.

The resolution also addresses concerns that the treaty’s Bilateral Consultative Commission (BCC), which has authority to approve “additional measures as may be necessary to improve the viability and effectiveness of the treaty,” might modify or amend the treaty in a way that constrained missile defense.  Most significantly, the resolution contains an understanding that “any additional New START Treaty limitations on the deployment of missile defenses,” including any limitation agreed to by the BCC, would require an amendment to the treaty that requires Senate consent.  It also has a condition that requires the President, prior to any meeting of the BCC scheduled to consider “a proposal for additional measures,” to consult with Senate Foreign Relations Committee leaders “with regard to whether the proposal,” if adopted, would constitute an amendment that required Senate consent.

These and related provisions are extraordinary, and in some respects unprecedented, restrictions on presidential power to interpret and execute an arms control treaty.  I am surprised that the White House went along with them.  There may be room on the Senate floor to tighten missile defense provisions further, and the treaty may still raise separate concerns.  But the Senate has gone far to protect its prerogatives on treaty amendments and to ensure that no President can use New START or its BCC to affect the U.S. missile defense program.