Today, November 23, 2020 marks the first day the U.S. is no longer party to the Treaty on Open Skies. The treaty started as an idea by Eisenhower during the time aerial reconnaissance with U-2 spy planes became popular following World War II and the spread of nuclear proliferation. However, George H.W. Bush is credited with the current Open Skies Treaty after first outlining its principles in a speech at Texas A&M University in 1989. Bill Clinton’s administration carried the torch and successfully garnered Senate ratification in 1993. The George W. Bush administration had already taken power by the time the other Party states ratified the treaty, thus birthing a new era of aerial reconnaissance between Cold War states.
As most know, Congress holds the constitutional power to declare war, regulate armed forces, restrict war aims, procure weapons, and alter strength of the different services. Yet, forming alliances, agreeing to strategic arms control, and entering into free trade agreements requires Congressional approval for ratification. Article II Treaties (POTUS brokered international specifically require a 2/3 Senate majority for ratification.
What makes Congressional action within the Open Skies context now is incredibly unique –what are the rules for leaving? Writing this question, I immediately think of all the difficulties witnesses still with Brexit and how the authorities are having to develop exit procedures as they explore options to leave for the British to exit the European Union. Congress in the 2020 NDAA (Natl Defense Authorization Act) inserted a provision into Section 1234 setting preconditions on any Trump administration effort to withdraw requiring SecDef and SOS to submit a notification of withdrawal in the best interests of the U.S. to congressional foreign affairs and defense committees at least 4 months before notifying Open Skies Parties of U.S. intent to withdraw. The Trump Administration notified Open Skies Parties on May 22, 2020 of U.S. withdrawal without notifying Congress. This in itself tears at the constitutionality of Congressional vs. Presidential authority over national security and foreign affairs. Goldwater v. Carter (1979) effectively determined that Congress had not engaged and been at an impasse requiring judicial interference. Thus, it is likely challenges to Trump’s actions will not result in a win to the Democrats and few Republicans in the Senate who support the Open Skies Treaty. However, will this change the behaviour of Congress in the future?
It is interesting that the House’s version of Section 1234 in the NDAA possessed more explicit terms for Congressional participation in Open Skies withdrawal. However, this was watered down significantly in the Senate final edit. Given the START II expiration in 2021, could we see Congress try and pass bilateral legislation explicitly parsing power from the executive branch in regards to exiting treaties? Maybe. I think the majority of this interest stems from President Trump’s disillusion with arms control agreements, and in this arena we will likely see a renewed interest by Congress in foreign affairs. Since Vietnam Congressional interest in international relations as it relates to national security has consistently decreased, but given the lack of restrictions on nuclear weapons between former Cold War states, we could see this decline reverse. Will Congress begin taking the stage alongside the President to determine U.S. foreign relations, maybe not. Will Congress learn from this and challenge the executive branch to maintain and install arms control agreements with Russia, I think this is likely. President-elect Biden has publicly stated his support for things such as New Start. I believe Biden will not run from Congressional insertion in these issues, but should Congress enact legislation to accumulate more control in the U.S. withdrawing from arms control agreements, I believe future administrations could face conflict with Congress over influence.
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