Missile Malpractice

New START needs clarification.

By Andrew C. McCarthy
http://www.nationalreview.com
December 4, 2010 4:00 A.M.

Show me where in the Constitution it says the government — created by the people in order to serve the people — is empowered to mandate that those selfsame people buy health insurance as a condition of living and breathing in the United States.

That was the pointed demand put to Democrats during the Obamacare debate. You remember those months: threats and bribes for every wavering moderate on their side of the aisle, while Republican opposition was steamrolled with accounting voodoo and parliamentary tricks that would have made Saul Alinksy blush. And what was their answer on the Constitution? Why, it was right there in the preamble, they told us. It expressly says, in black and white, that it is government’s job to “promote the general Welfare.”

This was absurd, of course. The preamble? Never had it been understood to have the meaning ascribed by Obamacare proponents, nor to have such potent force. Preambles are just hortatory and self-justifying, right? It is the subsequent articles, terms, and conditions that have the force of law. Oh no, countered Democrats: The preamble is basic, foundational to our understanding of everything that follows — and “promote the general Welfare” couldn’t be clearer. It was the license, we were to believe, for Leviathan to take over one-sixth of the private economy.

So, now comes the ludicrous strategic arms–reduction treaty (“New START”) with Russia that President Obama is curiously desperate to ratify before more Republican senators arrive on the scene next month. What does the president say about the treaty language that clearly straitjackets U.S. missile defense, holding our security in an ever more threatening world hostage to Soviet — er, sorry, I mean Russian — offensive capabilities?

He tells you, Don’t worry about it: That’s just the preamble. Doesn’t mean anything.

With his own credibility in tatters, the president has taken to channeling Ronald Reagan as he campaigns for New START. In that spirit, we should note that there are countless good reasons, substantive national-security reasons, for the senate to Just Say No. But how about we go with just two basic points, neither of which requires you to be an expert in telemetry or to know your ICBMs from your AMRAAMs? Let’s just focus on credibility and competence.

On New START, as on many other matters, the Obama administration has demonstrated that it is not to be trusted. That’s bad — no matter who the president is, we want to be able to credit him on vital issues of national defense. Nevertheless, when we hear these incessant Democratic invocations of the Gipper’s bon mot, “Trust but verify,” we ought to be thinking Barack Obama, not Vladimir Putin.

Trusting the Russian strongman is out of the question — wasn’t it only about ten minutes ago that President Bush was wiping egg off his face as the “strategic partner” whose soul he thought he had peered into rolled Red Army tanks into the heart of Georgia? But if we are going to trust Obama, we have to verify. The president notoriously says whatever he thinks he needs to say to achieve his objectives, and, with START in particular, the administration’s behavior has been abominable.

There is, as noted, the topsy-turvy matter of preambles. As National Review’s editors have pointed out, the New START preamble plainly touts “the interrelationship between strategic offensive arms and strategic defensive arms.” It further purports to cement for all time the current posture of this purported interrelationship, asserting that “current strategic defensive arms do not undermine” stability, and that the “interrelationship” between missile offense and missile defense “will become more important as strategic nuclear arms are reduced.” That is, the more we shrink our inventory of strategic nukes — the point of New START — the less latitude we will have to beef up our defense against missile attacks.

Let’s leave aside the patent stupidity of this theory, shown by (to take just a few examples) the fact that we will face far more worrisome nuclear threats than Russia in the future, the ample historical experience proving that reductions in U.S. missile levels do not (as Mr. Obama insists) discourage rogue governments from developing their own nukes, and the obvious conclusion that there is no necessary interrelationship between Russia’s offensive capabilities and our defensive needs (for ourselves and for the protection of our allies, a problem Russia doesn’t have) — which is why, former UN ambassador John Bolton recalls, the Bush administration wisely decoupled these considerations. Let’s even ignore for the moment the flat-out lunacy of agreeing that our future security somehow hinges on maintaining Russia’s ability to attack us. Quite apart from all that, there remains the simple matter of the treaty’s text.[1]

For the Russians, this is the ballgame. Foreign minister Sergei Lavrov issued an unambiguous statement at the time the treaty was signed pronouncing the limitations on U.S. missile defense to be “clearly spelled out in the treaty” and “legally binding.” And why not? Besides the preamble, the treaty expressly prohibits offensive-missile launchers from being converted into defensive-missile interceptors. Moreover, beyond START’s own language, the Heritage Foundation’s Baker Spring observes that, in its February 2010 report on ballistic-missile defense, the Obama administration explicitly limited the program in order to maintain the strategic balance not only with Russia but with China, too. [2]

In the face of all this evidence, the Obama State Department counters that New START imposes “no constraints on deploying the most effective missile defenses possible.” This just mulishly repeats the absurd denials of Ellen Tauscher, State’s big mahoff on arms control, which are captured in former Defense Department official Keith Payne’s recent NRO essay: “The treaty does nothing to constrain missile defenses…this treaty is about offensive strategic weapons”; “There is no limit or constraint on what the United States can do with its missile defense system”; and “There are no constraints to missile defense.” No, of course not…and the voice in the back of my head keeps chanting, “If you like your health insurance, you get to keep your health insurance!” [3]

It’s a tad late in the day for the president to argue that he’s still your honey, so never mind what your lyin’ eyes and ears are telling you. But even if that weren’t true, the Obama administration never disappoints when it comes to your worst suspicions. Despite serial denials, some issued in congressional testimony by Secretary of State Hillary Clinton and Secretary of Defense Robert Gates, the Washington Times’s Bill Gertz reports that an internal State Department memo documents — surprise! — extensive secret talks between the Obama administration and the Russians regarding missile defense. Turns out the administration even proposed a draft treaty on missile-defense cooperation, notwithstanding its assurances that no such deal was in the works.

Which is all to say that Obama administration posturing cannot be taken at face value. That would probably be true in any case. It is especially true when (a) the stakes involve national security; (b) the language of the treaty cuts against the posturing; (c) the administration has already been caught playing fast and loose with pertinent facts; (d) Obama not only is philosophically opposed to robust missile defense but has actually reneged on missile-defense commitments the nation made to Poland and the Czech Republic; and (e) the other party to New START is publicly insisting on an interpretation of treaty terms that flies in the face of the administration’s stated construction.

Russia’s contradiction of the administration brings us to the second basic problem with New START: the failure to meet the minimal demands of competence. A treaty is like a contract between two parties that happen to be sovereign nations. A contract is a meeting of the minds on essential terms. When contracts get breached, it is usually because the parties thought they understood each side’s obligations when they signed, but some latent ambiguity unexpectedly led them to construe their obligations differently and defy each other’s expectations. That’s when the lawyers start getting sued for malpractice, for failing to make sure the terms were crystal clear.

Contrast that situation with New START, which is unratified — meaning it’s not a contract yet, just a proposal. We don’t have to wait for a breach: We already know there is galactic disagreement between what Russia and the Obama administration say the treaty portends for missile defense.

So here’s a question for Lindsey Graham (R., S.C.) and other lawyer-senators who are said to support ratification: If it would be malpractice to counsel a client to sign an ambiguous contract that unexpectedly leads to a messy breach, what word should we use for the incompetence involved in counseling a country to enter a treaty about which we know, going in, that there are irreconcilable differences on the key point? Inexplicable? Reckless? Disbarment material?

If the Obama administration’s representations about New START’s benign treatment of missile defense are true, what could possibly be the problem with telling the president to go back to the Russians with a codicil that says exactly what the State Department has been telling us? You know: “Mr. Medvedev, just sign this piece of paper that says there are absolutely no limitations on U.S. missile defense and that you have no idea what Mr. Lavrov had been drinking when he said otherwise.”

At a minimum, the Senate ought to demand searching testimony and every iota of the negotiation record. Our security would be important enough to demand that in any event. What could possibly be the reluctance to demand it in a case where the parties are already at odds and the administration has a sorry history of making misrepresentations and stonewalling the inquiries that inevitably follow?

There is no reason to rush New START. It is an unnecessary treaty, and that which is unnecessary to do is even less necessary to do hastily.

— 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.

Links:

[1] http://www.nationalreview.com/articles/229564/treaty-utopia/john-r-bolton

[2] http://www.heritage.org/Research/Reports/2010/11/New-START-Critical-Limits-on-US-Missile-Defense-Options-Persist

[3] http://www.nationalreview.com/articles/253983/new-start-mischaracterization-and-misdirection-keith-b-payne