Sharing New START’s negotiating record is unwarranted

On September 16, the US Senate Foreign Relations Committee approved New START, the bilateral treaty signed in April that would verifiably reduce US and Russian nuclear weapons. Three Republican senators — Richard Lugar, Bob Corker, and Johnny Isakson — voted in committee to approve the treaty. Such support bodes well for the pact’s prospects during floor consideration by the full Senate, which can still attach additional declarations and conditions to New START’s resolution of ratification in order to clarify its interpretation of the treaty. Senate leaders expect to take up the treaty sometime this year.

The special circumstances that led to the release of the negotiating records for the ABM and the 1987 Intermediate-Range Nuclear Forces (INF) Treaty do not apply in the context of New START, as some treaty skeptics argue.

The votes of confidence from Lugar, Corker, and Isakson demonstrate that the Obama administration and bipartisan treaty supporters have alleviated many Republican concerns about New START’s impact on US missile defenses, treaty verification, nuclear modernization funding, and tactical nuclear weapons. Republicans were undoubtedly influenced by the fact that New START is supported unanimously by the US military leadership and by a litany of prominent national security leaders from both parties.

Nevertheless, treaty skeptics such as Sen. Jon Kyl, the Republican minority whip, say that concerns about New START cannot be fully laid to rest until the Obama administration provides the Senate with access to the negotiating record. The record is an expansive collection of plenary statements, draft texts, and memoranda of conversations between members of the US and Russian delegations. Skeptics claim to seek access to the record so they can ensure that the Obama administration did not agree to secret limits on US missile defenses or fold to the Russians in other key areas.

While childhood lessons (“sharing is caring”) and platitudes (“what do you have to hide?”) suggest that the Obama administration ought to comply, sharing New START’s negotiating record with Senate Republicans is unwarranted. In fact, sharing the record might delay the approval process and would confuse key issues, misinterpret ratification precedents from previous arms control treaties, and undermine future US diplomacy based on flimsy evidence.

Delay and confusion. Republicans requested the negotiating record before the Obama administration officially submitted New START to the Senate. On May 6, six Republican senators sent President Obama a letter requesting access to the record. The letter stated that access was needed so senators could “form a fully informed opinion” and fulfill their advice and consent role. However, Obama did not transmit the treaty text and article-by-article analysis to the Senate until May 13. In other words, skeptics did not even wait until they received the official text and analysis before they requested the negotiating record. The request was likely designed to serve as a delaying tactic. After all, policymakers were still receiving documents 17 months after the Senate was granted access in 1987 to the negotiating record for the Anti-Ballistic Missile (ABM) Treaty.

The New START negotiating record will obfuscate as much as it will clarify. The record sought by treaty skeptics is really only the US government’s record of the negotiations. It cannot shed light on Russian negotiators’ actual understanding of treaty provisions. Thus, the negotiating record offers little beyond what American officials already presented to senators during their sworn testimonies.

Some Republicans seem bent on viewing the record to prove that the United States caved in on every Russian demand. Apart from this premise being false — warhead counting rules, as just one example, clearly favor the United States — the disclosure of New START’s record risks basing the Senate’s ultimate consent, if granted, on preliminary and evolving negotiating positions instead of agreed-upon provisions included in the official treaty text. In any negotiation, changes and compromises occur as the process moves forward. Hence, evaluating the positions in the negotiating record would distract from the ratification process’s central purpose: building a shared understanding between the executive branch and the Senate about the meaning and obligations of the final text of New START.

Bad precedents. The special circumstances that led to the release of the negotiating records for the ABM and the 1987 Intermediate-Range Nuclear Forces (INF) Treaty do not apply in the context of New START, as some treaty skeptics argue. The disclosure of the negotiating records for those treaties was precipitated by the Reagan administration’s wanton attempt to use the ABM treaty’s voluminous negotiating record as a basis for “reinterpreting” the agreement so as to allow new strategic missile defense systems such as the Strategic Defense Initiative (SDI).

The Reagan administration argued that the ABM treaty’s true meaning, hidden away in the negotiating record, supported a broader interpretation that would allow advanced development and testing of SDI, despite what the actual text of the treaty was generally interpreted to mean and what the Senate was told the treaty meant when considering it in 1972. Unconvinced by such a radical approach, Democratic Sens. Sam Nunn and Carl Levin requested and gained access to the ABM treaty’s negotiating record, which they used to demonstrate that the administration’s efforts to reinterpret the treaty were unfounded.

As a result of this episode, the Senate added a provision (later known as the “Biden-Byrd Condition”) to the resolution of ratification on the INF treaty. The Biden-Byrd condition mandated that the pact could only be interpreted and implemented according to the “common understanding” established during executive branch and Senate ratification deliberations. This understanding, in turn, was to be based on the treaty text and the “authoritative representations” provided by the executive branch to the Senate during deliberations. It was not to be based on the negotiating record, which the Senate ought to consult only on “treaty provisions which may appear ambiguous or about which questions may arise,” according to a Senate Foreign Relations Committee report. While the Senate received access to the negotiating record for the INF treaty as a residual effect of the ABM interpretation dispute, the Foreign Relations Committee concluded that due to the Biden-Byrd condition, the record “need not have been examined.” Since the INF treaty, the Senate has attached the condition to the vast majority of the resolutions of ratifications dealing with arms control and security that it has adopted.

Undermining diplomacy on flimsy evidence. The exposure of negotiating records risks jeopardizing the confidentiality and frankness of treaty negotiations. In addition to affirming that the treaty text and sworn testimonies should constitute the primary basis for the Senate’s understanding of the INF treaty, the Foreign Relations Committee in 1988 also concluded that “a systemic expectation of Senate perusal of every key treaty’s ‘negotiating record’ would inhibit candor during future negotiations and could be expected to induce posturing on the part of US negotiators and their counterparts during sensitive discussions.”

That danger still exists today. Assistant Secretary of State Rose Gottemoeller argued that politicizing internal negotiating operations by releasing New START’s negotiating record would exert a “chilling effect” on future US diplomacy. Senators should not ignore how such a freeze would undermine American influence around the world.

Treaty skeptics’ primary substantive justification for requesting New START’s negotiating record is based on flimsy evidence. Skeptics believe disclosure is warranted primarily because of New START’s supposedly deleterious impact on US missile defenses. They point to the statements below as evidence:

• New START’s preamble (which is not legally binding)
• A Russian unilateral statement on New START (which is not legally binding)
• A senior Russian official’s comments to the press (the official might simply have misspoken while pandering to a Russian domestic audience that favors restrictions on US missile defenses)
• An inaccurate Washington Times story that confused two separate sets of US-Russian negotiations
• Comments made off-the-record by a senior Russian official who, though unable to “quote … unequivocal language from President Obama or Secretary Clinton” proving that the United States secretly promised during New START negotiations not to develop strategic missile defenses in Europe, nevertheless told a US-based commentator that such a tacit agreement had in fact been reached (the commentator then deposited the gossip into a Time commentary article that treaty skeptics cite as proof)

Non-legally-binding statements, a Russian official’s pandering, and off-the-record gossip about secret deals do not add up to ambiguity about whether New START restricts missile defenses that make sense for US security.

Administration officials and military leaders have denied repeatedly that any secret deals were made with Russia on missile defense. New START does not “appear ambiguous” — the criterion that, according to the precedent established in the INF dispute, might justify access to the negotiating record — when it comes to restricting the most effective US missile defenses. For better or worse, the treaty does not restrict them, as the head of the Missile Defense Agency and nonpartisan military officers have testified under oath.

Nonetheless, the administration provided senators with a thorough summary of the New START negotiating record regarding missile defense as a demonstration of good faith. Sen. John Kerry even postponed the Foreign Relations Committee vote for six weeks to give senators a chance to review the treaty documents and extensive material presented during the 21 Senate hearings on New START. While Kerry’s gesture of good faith ultimately bolstered bipartisan support for the treaty in the committee, some Republican skeptics are continuing their delaying tactics and repeating criticisms that administration and nongovernmental experts have already rebutted numerous times.

Conclusion. The Senate should base its New START advice and consent decision on the treaty text, the “authoritative representations” provided during sworn testimonies by administration and nongovernmental experts, the Russian government’s official position on the treaty (not one misstatement or gossip), supporting documents and analysis, and the thorough record produced by 21 Senate hearings, as well as the administration’s answers to over 900 questions submitted by senators for the record.

Given the abundance of information available to senators to make a decision on the treaty, requests for the negotiating record are gratuitous and oblivious to the damage that releasing the record could do to future American diplomacy.