Abstract: President Barack Obama has transmitted a deeply flawed arms control treaty to the Senate for its con­sent to ratification. While withholding consent is the sim­plest and most likely approach, the Senate may try to fix the treaty piecemeal, but this approach has inherent, serious risks. Fixing some of the serious flaws will require amend­ments to the text, and fixing others will require compelling the Administration to change some of its policies. Regard­less of what the Senate chooses, the stakes are high. As with all major arms control treaties, if New START enters into force, it could profoundly increase the likelihood of nuclear war and increase the number of weapons in the world.

New START is a deeply flawed arms control treaty with Russia. It is the product of a contradictory and wrong-headed approach to strategic nuclear arms control by the Obama Administration. The Adminis­tration’s approach to strategic nuclear arms control combines the worst aspects of Cold War arms control, which resulted in a nuclear arms race between the United States and the Soviet Union, with the worst aspects of President Barack Obama’s stated policy of seeking a world without nuclear weapons, which car­ries the serious risk of generating a nuclear conflict.

Because the President transmitted New START to the Senate for its advice and consent on May 13, 2010, the question arises as to whether the Senate can fix the flaws in or associated with the treaty. The procedural and legal answer to this question is an unequivocal yes.

The Constitution grants the Senate broad power in giving its advice and consent in the making of treaties.[1] In giving its advice, the Senate can alter the text of any treaty brought before it.[2] Therefore, the Senate could rewrite New START to fix the flaws and change it into a treaty that serves U.S. interests. However, as a practical matter, rewriting New START essentially from scratch on the Senate floor would be difficult. The simpler and more likely approach would be for the Senate to withhold its consent to ratification and encourage the President to renegotiate the treaty.

A third approach is for the Senate to identify the specific flaws in or associated with New START and to fix those flaws with a series of amendments to the treaty itself or to the resolution of ratification.[3] This piecemeal approach can work, but it will be difficult and could lead to uncertain outcomes because some remedies to the identified flaws, par­ticularly those that are amendments to the resolu­tion of ratification, may only partially repair the specific flaws they address. Thus, this approach has inherent, serious risks. On the final vote, it will likely require the Senate to make a difficult judg­ment call on whether the amendments to the treaty and the resolution of ratification have sufficiently fixed the treaty’s critical flaws.

To demonstrate the difficulties and uncertainties in this approach, this paper identifies the 12 impor­tant flaws in or associated with New START and suggests a range of remedies that the Senate could apply to correct each flaw.

The 12 Flaws and Their Remedies

New START has at least 12 specific flaws that could seriously harm the security of the U.S. and its allies. Some are internal to the treaty itself. Others are external to the text of the treaty, but would still create or exacerbate security problems. The Senate has every reason to seek remedies to these 12 flaws. For some flaws, more than one remedy is suggested, and the multiple remedies may not be mutually exclusive.

Flaw #1: New START fails to speak to the issue of protecting and defending the U.S. and its allies against strategic attack.

Given the trends in the proliferation of nuclear weapons and the means to deliver them, the most important step that the U.S. needs to take is to move away from the Cold War deterrence policy. That pol­icy bases deterrence on the U.S. threatening to retal­iate for a strategic attack on the U.S. or its allies with a devastating nuclear counterstrike. The U.S. needs to move toward a deterrence policy based on pro­tecting and defending the people, territory, institu­tions, and infrastructure of the U.S. and its allies against looming or attempted strategic attacks.[4] New START does nothing to facilitate this transition.

The Senate can best remedy the flaw that New START does not move toward a defense-oriented deterrence policy by attaching a declaration to the resolution of ratification stating that the U.S. is com­mitted to defending its population, territory, institu­tions, and infrastructure and those of its allies against strategic attack to the best of its ability. Sec­ond, the declaration should point out that retalia­tion-based deterrence is an increasingly tenuous concept in a proliferated world. Third, the declara­tion should announce that the U.S. intends to con­struct an overall strategic posture consisting of a mix of offensive and defensive, nuclear and conven­tional forces that are optimized for holding at risk the means of strategic attack against the U.S. and its allies. Finally, the declaration should encourage Russia to adopt a more defense-oriented strategic posture and policy.

The risk with this approach is that the remedy is merely a declaration. As only a statement of intent by the U.S., it cannot force even the U.S. govern­ment, much less the government of Russia, to take substantive steps toward a more defensive strategic posture. It represents an important, but ultimately tentative step in the right direction.

Flaw #2: New START imposes restrictions on U.S. missile defense options.

New START imposes restrictions on U.S. missile defense options in at least four areas. The first and most important restriction is derived from para­graph 9 of the preamble. This language applies a logic that says that U.S. missile defense capabilities must be reduced in accordance with the reduction in the strategic offensive arms of Russia because the defenses will otherwise “undermine the viability and effectiveness” of Russia’s offensive force. On April 7, 2010, Russia reinforced this restriction by issuing a unilateral statement asserting that Russia could withdraw from New START if the U.S. takes either qualitative or quantitative steps to build up its mis­sile defense capabilities. Second, Article V prohibits conversion of offensive strategic missile launchers to launchers of defensive interceptors and vice versa. Third, several provisions limit and restrict certain types of missiles and missile launchers that are used as targets in missile defense tests.[5] Finally, the treaty gives the Bilateral Consultative Commission (BCC), the treaty’s implementing body, a broad mandate that could permit it to impose additional restrictions on the U.S. missile defense program.[6]

The certain remedy for these flaws is for the Sen­ate to modify the text of the treaty in each instance. The Senate could simply strike the language in the preamble. Article V could be amended to remove the prohibition against converting offensive missile launchers to launchers of defensive interceptors, while retaining the prohibition against converting launchers of defensive interceptors to launchers of offensive strategic missiles. The restrictions on cer­tain kinds of missiles used as targets in missile defense tests and their associated launchers could be eliminated by redefining the kinds of missiles and launchers subject to the treaty’s restrictions to exclude those used for missile defense tests. Finally, the Senate could modify the relevant portions of the treaty, including Part 6 of the protocol, to narrow the scope of the BCC’s authority in a way that bars it from considering any arrangements that extend to the subject of ballistic missile defense.

A somewhat less certain remedy is for the Senate to adopt two reservations regarding the specific pro­visions in the preamble and the activities of the BCC. The first would explicitly reserve U.S. options for qualitatively and quantitatively improving its missile defense capabilities in any way it chooses. The second would reserve the U.S. right to object to the BCC’s considering of any arrangement on mis­sile defense. Adopting these reservations would require Russia to decide whether to accept the U.S. reservations in the course of exchanging the instru­ments of ratification. However, this remedy is not appropriate for the provisions that prohibit the con­version of launchers and restrict targets and launch­ers for missile defense test. In these two cases, the restrictions in the text are specific and clear, which makes reservations in these instances problematic.

Another remedy is for the Senate to attach a con­dition to the resolution of ratification. This condi­tion would describe the specific steps for improving U.S. missile defense capabilities, including neces­sary funding levels for these steps, and require Pres­ident Obama to certify his support for these steps prior to exchanging the instruments of ratification. This remedy would blunt Russian attempts to weaken the U.S. missile defense program because President Obama would be honor-bound to block such attempts. The weakness with this remedy is that a future Congress could decide to reject these steps, perhaps because of stated Russian objections. This condition could also include a provision that requires the President to certify that he will con­clude any future international agreements that would restrict U.S. missile defense options only as treaties subject to Senate advice and consent. Such treaties could include a “preventing an arms race in outer space” (PAROS) agreement or a space “code of conduct” agreement.

The weakest remedy is for the Senate to amend the resolution of ratification with a declaration. It would replace the Administration’s unilateral decla­ration on April 7, 2010, in response to the Russian unilateral statement, which basically states that the U.S. will not pursue its missile defense program in a way that would lead to Russian objections. The alternative declaration could challenge the legiti­macy of the claim in the Russian unilateral state­ment that certain undefined steps by the U.S. to defend itself and its allies against missile attacks are somehow “extraordinary events” that would justify Russian withdrawal under Article XIV of the treaty. This is a weak remedy because it only states the U.S. position on the matter of withdrawal and does not impose any direct obligation on Russia not to with­draw because of improvements made in U.S. missile defense capabilities.

Flaw #3: The atrophying U.S. nuclear arsenal and weapons enterprise make reductions in the U.S. strategic nuclear arsenal even more dangerous.

Article V of New START permits strategic nuclear modernization, but the U.S. strategic nuclear arse­nal has aged, and the weapons enterprise that is necessary to pursue modernization has atrophied over the past two decades. This includes an alarm­ing weakening of the industrial base for solid rocket motors. These nuclear modernization problems are not in the text of the treaty or its interpretation, but exist only in relation to the treaty, which exacerbates these problems.

The solution to the ongoing problems with the lack of nuclear weapons modernization depends on a commitment between the Obama Administration and Congress to pursue nuclear modernization on a sustained basis. During the consideration of New START, the Senate could amend the resolution of rat­ification with a condition that requires President Obama and congressional leaders to commit to a detailed nuclear modernization agenda that extends for the 10-year life of New START. Specifically, this condition would outline this agenda and require the President to certify that he supports it and that he has received a letter cosigned by leaders of both the House and Senate certifying that they support it.

One problem with this remedy is that an effec­tive nuclear modernization program will take many years to accomplish, and the current Congress can­not legally bind the President and future Con­gresses to enact the necessary legislation, including authorization and appropriations bills.

There is also a logical problem. Members in Congress concerned about the atrophying nuclear arsenal and weapons enterprise are seeking a deal with Obama on this issue in the context of Senate consideration of New START for a reason. The Obama Administration is only supporting the modernization effort as a means to obtain Senate consent to the ratification of New START. If the Obama Administration supported the nuclear modernization program on its merits, no deal would be needed. Once the treaty is ratified, noth­ing will prevent the Obama Administration from walking away from the nuclear modernization program. Compounding this problem is the high likelihood that the House Energy and Water Appro­priations Subcommittee will continue to block essential portions of an effective nuclear modern­ization program as it has in the past.

Flaw #4: New START counts conventional “prompt global strike” weapons against the numerical limits imposed on nuclear arms.

New START is supposed to be about limiting strategic nuclear arms. There is no justifiable reason for counting conventional weapons against the numerical limits in the treaty.

The Senate’s only viable option to remedy this flaw is to amend the treaty text. Specifically, the Sen­ate could modify New START so that it follows the approach taken in the Moscow Treaty, which imposed numerical limits on only operationally deployed strategic nuclear warheads. By stripping the numerical limits on delivery vehicles and launchers out of the treaty, this approach would leave con­ventionally armed systems unrestricted. This is a certain remedy to this flaw, but it will require a sweeping amendment to the text of the treaty.

Flaw #5: The Obama Administration has made New START an essential part of a broader agenda that pursues the goals of nuclear nonprolifera­tion and nuclear disarmament concurrently.

While this concurrent pursuit of nonprolifera­tion and nuclear disarmament is implied in several provisions of New START’s preamble, the true source of the problem is in the Obama Administra­tion’s overall approach. The approach is fundamen­tally flawed because it presents a sequencing problem with nonproliferation and disarmament.

Specifically, the Obama Administration is clearly committed to a policy that asserts that for every neg­ative development in the area of nuclear prolifera­tion the U.S. needs to take a substantive step in the direction of nuclear disarmament, and New START is a product of this misguided approach. Ultimately, this approach effectively assumes that the posses­sion of nuclear arms by the U.S. is the incentive driving other nations to pursue nuclear weapons programs. Not only is the assumption misplaced, but the policy will undermine deterrence and increase the likelihood of the use of nuclear weap­ons.[7] At some point, the Obama Administration will need to recognize that it is foolish for the U.S. to take substantive steps toward nuclear disarmament at the same time the nuclear proliferation problem is growing worse.

Because this flaw is associated with New START but not a central element of the treaty itself, the Sen­ate can best remedy it by adopting a declaration to the resolution of ratification that supersedes the Obama Administration’s policy of simultaneously pursuing nuclear nonproliferation and nuclear dis­armament. This declaration should specifically state that it is the policy of the U.S. to sequence the pur­suit of nuclear proliferation goals and nuclear disar­mament by first achieving universal adherence to the Non-Proliferation Treaty (NPT) and realizing the NPT’s promise of just five nuclear weapons states (the U.S., China, France, Russia, and the United Kingdom) before taking substantive steps toward nuclear disarmament.

Flaw #6: New START’s limits are uninformed by a targeting policy that is governed by the protect and defend strategy.

Flaw #1 is that the treaty is not consistent with a broader policy for protecting and defending the U.S. and its allies against strategic attacks. A key deriva­tive of this flaw is that New START is not accompa­nied by a strategic targeting policy that is based on holding at risk the current and potential means of strategic attack on the U.S. and its allies. While this flaw is external to the treaty, it is still a serious short­coming in the policy that produced the treaty.

Accordingly, the Senate should amend the reso­lution of ratification to require the President to cer­tify to the Senate that he will establish a targeting policy for U.S. strategic forces that is designed to provide the best protection possible to the popula­tion, territory, institutions, and infrastructure of the U.S. and its allies against strategic attack. Specifi­cally, the President would certify that this counter­force targeting policy will divide U.S. strategic targets into three baskets: targets best held at risk by offensive nuclear forces, targets best held at risk by conventional strike systems, and targets best held at risk by defensive systems with an appropriate level of redundancy.

Flaw #7: New START leaves in place a large Russian advantage in nonstrategic (tactical) nuclear weapons.

While the exact numbers are not public, Russia reportedly has a several-fold numerical advantage over the U.S. in tactical nuclear weapons.[8] New START does not impose any limits whatsoever on tactical nuclear weapons. As such, the Russian advantage poses a significant challenge for the U.S. in maintaining a credible extended deterrence pol­icy for the benefit of its allies.

Given the Russian advantage in tactical nuclear weapons, the Obama Administration understand­ably chose not to include this subject in the New START negotiations. U.S. negotiators would have no cards to play in the negotiations on tactical nuclear weapons, and the outcome would inevita­bly have been strongly in Russia’s favor.

Under current circumstances, the best option for the U.S. is to treat Russia’s advantage in tactical nuclear weapons as a compliance issue. The Strate­gic Posture Commission found that Russia is not honoring its commitments under the Presidential Nuclear Initiatives (PNIs) of the early 1990s, which subject these weapons to certain restrictions.[9] The commission also reaffirmed the necessity of main­taining the U.S. policy of extended deterrence to its allies in key regions, including Europe.[10]

Accordingly, the Senate should attach a condi­tion to the resolution of ratification that requires the President to certify two points on this subject: First, he will not exchange the instruments of ratification for New START until Russia has demonstrated that it is fulfilling its PNI commitments. Second, he will not exchange the instruments of ratification until he has received a letter signed by all the members of the Strategic Posture Commission stating that they have reviewed the Administration’s policies and plans for sustaining the extended deterrence policies, par­ticularly for U.S. allies in Europe near Russia, and found those policies and plans to be adequate.

Flaw #8: New START does not appear to limit rail-mobile intercontinental ballistic missiles (ICBMs).

The definitions of rail-mobile ICBMs and rail-mobile ICBM launchers established in the expired START, which applied to the associated restrictions and limitations in START, are not in New START.[11] At a minimum, this makes it plausible that Russia will claim that any rail-mobile ICBMs and ICBM launchers that it may build are not subject to New START limitations. The Obama Administration asserts that rail-mobile ICBMs and launchers are captured by the treaty under generic definitions of deployed ICBMs and deployed and non-deployed ICBM launchers by inference.[12] However, it acknowledges that if Russia builds a rail-mobile ICBM and its associated launcher, the BCC will need to adjust the definitions. Yet the State Depart­ment has not explained why these necessary adjust­ments would not require amending the treaty.

The certain remedy to this is for the Senate to amend the definitions in the treaty’s protocol to cover rail-mobile ICBMs and ICBM launchers explicitly. The less certain remedy is for the Senate to attach an understanding to the resolution of rat­ification that makes it clear that the generic defini­tions of ICBMs and ICBM launchers cover rail-mobile systems.

Flaw #9: The BCC’s mandate is overly broad.

With its broad mandate, the Bilateral Consulta­tive Commission could undertake arrangements that go beyond the proper scope of the treaty, such as adopting additional restrictions on U.S. missile defense options. Other steps that purportedly sup­port implementation of the treaty could actually extend to matters requiring formal amendment to the treaty. Finally, certain arrangements could be inconsistent with the authoritative representations of the meaning of the treaty that the Administration provided to the Senate before ratification. These kinds of unwarranted proposals in the BCC could be initiated by either the U.S. or Russia.

To prevent the BCC from abusing its overly broad mandate, the Senate should attach a condi­tion to the resolution of ratification that requires the President to certify that the U.S. will not propose arrangements at the BCC that go beyond the treaty’s scope, that extend to matters that should be han­dled as amendments to the treaty, or that are incon­sistent with the Administration’s representations to the Senate. Further, the certification should state that the U.S. will not consider any similar proposals from Russia. Finally, the certification should com­mit the President to share the final draft of any arrangement under consideration at the BCC with Members of the Senate and to consult with Senators on the implications of such arrangements before their adoption.

The weakness in this remedy is that its success depends on Senators remaining vigilant after the required certification. This is a 10-year treaty, and the Russians and the U.S. executive branch will be tempted to use the BCC’s broad authority as an expedient for concluding the arrangements that they want, perhaps at the expense of U.S. security interests and the prerogatives of the Senate.

Flaw #10: The New START limitations are unclear on whether they would permit the U.S. to counter future threats from a combination of states.

New START’s limits were apparently based on maintaining a balance of strategic nuclear forces between the U.S. and Russia, but this is the wrong way to view the balance of forces in a proliferating world. The treaty’s bilateral approach leaves unan­swered what the U.S. will do if it faces a combina­tion of strategic threats from several nations, including Russia.

The Senate can address this apparent flaw in New START by attaching a condition to the resolution of ratification. The condition would require the Presi­dent to certify to the Senate that during the life of this treaty he will not permit the number of real—as opposed to accountable—operationally deployed strategic nuclear warheads in the U.S. arsenal to fall below 95 percent of the combined arsenals of Russia, China, Iran, North Korea, and any other potentially hostile nation with strategic nuclear weapons.

However, the effectiveness of this condition will depend on the U.S. intelligence community and the State Department’s verification office keeping a cur­rent, accurate, and honest assessment of the poten­tially threatening strategic nuclear weapons that are deployed around the world.

Flaw #11: New START is not adequately verifiable.[13]

Compared to the expired START’s verification regime, the New START verification regime is signif­icantly less robust, even though New START will drive the U.S. strategic nuclear arsenal to lower levels. The specific areas that are significantly less robust include:

• A narrowing of the requirements for exchanging telemetry,
• A reduction in the effectiveness of the inspections,
• Weaknesses in the ability to verify the number of deployed warheads on ICBMs and submarine-launched ballistic missiles (SLBMs),
• Abolition of the START verification regime gov­erning mobile ICBMs, and
• A weakening of the verification standards gov­erning the elimination of delivery vehicles.

The Senate can certainly shore up New START’s verification regime by amending the text of the treaty as necessary. However, this would require an extensive and complicated rewriting of the verifica­tion provisions of the treaty, including its protocol and annexes.

The less certain remedy is for the Senate to attach a condition to the resolution of ratification that requires the President to certify to the Senate prior to ratification that the U.S. and Russia are commit­ted to undertaking negotiations on a separate strate­gic transparency treaty immediately following ratification and that this treaty will increase trans­parency in each of these areas and perhaps others. The weakness with this remedy is that the success of the follow-on negotiations is uncertain.

Flaw #12: The Obama Administration believes that Russian cheating under New START is only a marginal concern.

On July 20, 2010, Principal Deputy Under Sec­retary of Defense for Policy James N. Miller asserted in testimony before the Senate Armed Services Committee that Russian cheating or breakout under the treaty would have little effect because of the U.S. second-strike strategic nuclear capability.[14] The Administration’s cavalier attitude about the pros­pect of Russian cheating under New START is not a problem with the text of the treaty, but with the Administration itself.

The Senate can begin to remedy the Obama Administration’s propensity to dismiss the ramifica­tions of Russian cheating by amending the resolu­tion of ratification. This amendment would require the President to certify to the Senate that at any point during the life of the treaty when Russian compliance with its terms is ambiguous or, worse, when direct evidence indicates Russian cheating, he will put the issue on the BCC’s agenda and simulta­neously provide the Senate with a proposal for a U.S. responsive step that is proportional to the suspected action of Russian noncompliance. The proposed response should be matched with a con­sultative process between the executive branch and the Senate to perfect the proposed response if implementing it becomes necessary.

The weakness with this condition in addressing the possibility of Russian noncompliance with the terms of New START is that it cannot prevent the Obama Administration from studiously avoiding finding possible instances of noncompliant behav­ior. Further, its effectiveness will require constant vigilance by the Senate over often arcane and com­plex compliance issues for the entire life of the treaty. Such vigilance by the Senate is far from cer­tain.

Conclusion

The flaws in and associated with New START are numerous, substantive, and serious. The Senate will find them difficult to fix. Essentially, the Senate has two broad choices: It can (1) defer granting its con­sent to ratification or reject the treaty outright and instruct the Obama Administration to negotiate a new treaty or series of treaties with Russia that do not have these flaws or (2) try to remedy the flaws by redrafting significant portions of the treaty and adopting a series of amendments to the resolution of ratification. If the Senate chooses the latter approach, it should be prepared for a long and com­plicated process on the Senate floor. This approach would necessarily require either Russian acceptance of the changes or additional negotiations.

The Founding Fathers intended for the Senate to serve as a quality control mechanism in treaty mak­ing. Because of its flaws, New START will present the Senate with a challenge to fulfill its constitutional responsibilities. However, this difficulty should not become an excuse for the Senate to shirk its respon­sibilities and simply rubberstamp New START. As with all major arms control treaties, if New START enters into force, it could profoundly increase the likelihood of nuclear war and increase the number of weapons in the world. The very survival of the United States may be at stake in these issues. The American people are depending on their Sena­tors to take the necessary actions to defend them against attack.

—Baker Spring is F. M. Kirby Research Fellow in National Security Policy in the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation. He is also a member of the New START Working Group.