Wein ore Nie pA a September 1988 Arms Control Today PST TC Mae a Over the Sofaer Doctrine Senator Joseph R. Biden, Jr., and John B. Ritch 1] —— Morality, Deterrence, and SDI Roe nina ennien tn National Conference of Catholic Bishops Why the B-2 Will Bomb Michael Brower The Krasnoyarsk Radar: A ‘Material Breach’? Ralph Earle II and John B. Rhinelander —_—__The End of the Sofaer Doctrine: A Victory for Arms Control and the Constitution Senator Joseph R. Biden, Jr., and John B. Ritch I ‘Senator Joseph R. Biden, Jr, (D- DE), chairman of the Judiciary Commit- tee and ranking Democrat on the Foreign Relations Committe, herein describes ‘the events tat ld the Senate to adopt the “Biden Condition” in its advice and con- sent to ratification of the Intermediate. ‘range Nuclear Forces (INF) Treaty. John B. Ritch I, deputy director ofthe Senate Foreign Relations Committee, worked ex- tensively with Senator Biden and other committee members throughout the treaty “reinterpretation” debate, “By enacting the Biden Condition to the INF Treaty, the Senate has effectively declared the ‘reinterpretation’ of the ABM Treaty to be invalid and unconstitutional.” hen President Reagan and General Secretary Gorbachev rmet in Moscow and exchanged the INF Treaty instruments of ratification on June 1, 1988, that ceremony marked an historic moment not only for arms control Dbutfor theSenate's constitutional rolein the treaty-making process, INF Treaty raifca- tion ended a 16-year hiatus since a super- power arms accord—the Antiballistic ‘Missile (ABM Treaty—ovas last ratified. It also ended a prolonged dispute between the Executive and the Senate concerning the shared allocation of the US. Constitution's “Treaty Power” ‘The INF and ABM Treaties are vastly different in purpose. But they bear notable historical parallels and, now, through the Senate's action, a crucial legal linkage. (One parallel exists inthe U.S. politcal context. The virtually unanimous Senate ‘vote in favor ofthe INF Treaty suggeats that arms control has again becomea bipartisan ‘enterprise, just as it was in 1972. Now, as then, a conservative Republican President has traveled a great distance, literally and figuratively, to meet with his Soviet counterpart and to formalize accords aimed at initiating a new, less confronta- tional phase in superpower relations. Now, as then, domestic opponents of arms con- trol havo been isolated a8 extremists. The Senate vote in favor of the ABM Treaty was 88.2; on the INF Treaty, 93.5. Are Conrot Tay. Septem 168 Another parallel lies in the prospectfor arms control The ABM Treaty and the ac- companying SALT I Interim Agreement signalled thebeginning ofthe modern arms controlera, characterized initially by efforts to limit and prohibit weapons and testing The INF Treaty could initiate a second phase, distinguished by comprehensive reductions in nuclear and conventional ‘weaponry. While the INF Treaty sel does not substantially shrink thesuperpowerar- senals, it crosses a major threshold by eliminating newly deployed, highly capable missles. In so doing, it codifies in- trusive verification procedures that could prove precedential for new agreements to reduce strategic nuclear arms and to stabi- lize NATO and Warsaw Pact conventional forces a sharply lower levels. ‘A third parallel relates tothe process of negotiation. In the lead-up to both treaties, the Kremlin reversed its postion dramat cally. On ABMS, the Soviets intially op- posed limitations, arguing that defenses against ballistic missles were nocessary and moral. Only after eustained American persuasion that dofenses were destabi {ng and futile did Moscow agree t a per ‘manant ban on nationvvide ABM defenses. Similan negotiations on the INF Treaty, Soviet negotiators dropped soveral key demands: that an INF Treaty be linked t0 a treaty on strategic offensive arms and strategic defenses, that the treaty cover aircraft as well as missles, that the Soviets be compensated for British and French in- termediate-range missiles, and that Asian- based $5-20 missiles be excluded. In the process, Moscow also overcame a long- standing reluctance to accept intrusive on- site inspection. Above and beyond these noteworthy historical parallels isthe crucial egal tiebe- tween the INF Treaty and the ABM Treaty. ‘The linkage was established by the Senate's adoption of a provision—a formal and legally binding “condition” of Senate con- sent—in the INF Treaty resolution of rati- fication.’ This stipulation, which became Jaw when the President acted on the condi- tional consent, explicitly affirms the crucial constitutional principle that, in implement- ing a treaty, the Executive must honor the interpretation shared by the Executive and the Senate atthe time of ratification. Passage of this measure was the most controversial and highly charged aspect of the Senate's consideration ofthe INF Treaty. ‘This was hardly surprising. The Senate had ‘been embroiled in the controversy over treaty Interpretation since October 1985, ‘when President Reagan, acting on the ad- vice of State Department Legal Adviser Abraham Sofaer,among others, announced ‘thatthe United States had developed aradi- ‘cal new interpretation ofthe AEM Treaty. It ‘was inevitable that the underlying and un- resolved question would figure centrally in Senate deliberation over the INF Treaty: Is unilateral presidential “reinterpretation” of a treaty constitutionally permissible? For- tunately, as events unfolded, the Senate summoned the will to assert decisively that the Executive cannot, without Senate ap- proval, change the meaning of a treaty. Origins of the Issue President Reagan unveiled his Star ‘Wars vision in March 1983. But it was not until more than two years later that his aides arrived at a rationale purporting t0 reconcile pursuit of the President's dream with U.S. obligations under the ABM‘Treaty. In attempting to square this circle, Sofacr, freshly installed as legal adviser, faced two tasks: to argue that the ABM ‘Treaty did not really say what it seams to say, and to argue that what the Senate was told in 1972 could be disregarded. Such dubious tks might have caused ‘more prudent presidential aides to recon- sider. But Sofaer and his colleagues were ‘undaunted. In an effort to defend the in- defensible, they developed and aserted two claims: one factual and one legal. The factual claim was that the “negotiating record"—a nebulous collec- tion of 13-year-old internal US. govera- ‘ment memoranda—demonstrated thatthe two superpowers had never achieved agreement ona permanent ban on the est ing and development of nationwide ABM defenses, notwithstanding that such @ ban {is critical to the logic of the ABM Treaty. Under this “broad” interpretation, future space-based and other mobile ABM sys- tems using “other physical principles” ‘were never covered by the ban on develop ‘ment and testing. Initially Sofae's factual claim also in- cluded a bald assertion concerning the ratification proceedings: that Nixon ad- ministration testimony during the 1972 ‘hearings supported the Reagan admini- stration’s new interpretation. When this aspect of the factual claim was demon- strated to be egregiously false, however, Sofaer attributed the error to “young lawyers” on his staff, fell back to a stilleun- supported assertion that the ratification record was ambiguous, and substituted a legal claim: in essence, that a President can simply ignore much of what the Executive branch has told the Senate in obtaining its consent to ratify a treaty. This legal claim became known as the Sofaer Doctrine. In combination, the two claims were designed to eviscerate the ABM Treaty, the ‘cornerstone of arms control. But the legal claim also had grave and far-reaching im- plications for all US. treaty-making—not only for the Senate's role, but for the con- duct of American diplomacy. Senators Sam Nunn and Carl Levin took the lead in addressing the factual Claim. This included the Senate's insisting ‘uponand obtaining theso-called “negotiat- ing record” so that Sofaer’s allegations about U:S-Soviet exchanges could be ex- amined in cold light. It also involved a detailed review of the Senate's 1972 hear- ings and debate. These efforts culminated in the spring of 1987 with Senator Nunn’s The Biden Condition Soit was: Resolved (two-thirds ofthe Senators present therein), That the Senate advise and consent to ratification of the Treaty between the United States cof America and the Union of Soviet Socialist Republics on the Elimination of Their In- termediate Range and Shorter-Range Missiles, together with the Memorandum of Understanding and the two Protocols thereto, collectively referred toasthe INF Treaty, allsgned at Washington on December 8,967 (Trenty Doc. 100-1), sujet he fl ing: Condition: (Q) Provided, that the Senate's advice and consent to ratification ofthe INF Treaty {s subject to the condition, based on the Treaty Clauses ofthe Constitution, that- (A) the United States shall interpret the Treaty in accordance with the common, understanding of the Treaty shared by the President and the Senate at the time the Senate gave its advice and consent to ratification: (B) such common understanding is based on: @ fist, the text of the Treaty and the provisions ofthis resolution of ratification; and Gi second, the authoritative representations which were provided by the Presi- dent and his representatives tothe Senate and its Committees in seeking Senate con- sent to ratification, insofar as such representations were directed to the meaning and legal effoct ofthe tox ofthe Treaty; and (© the United States shall not agree to or adopt an interpretation different from that common understanding except pursuant to Senate advice and consent toa sub- sequent treaty or protocol or the enactment of astatute; and ()if, subsequent to ratification of the Treaty, a question arises as to the inter pretation of a provision of the Treaty on which no common understanding was reached in accordance with paragraph (B), that provision shal be interpreted in ac- cordance with applicable United States law. detailed study, which marshalled solid evidence and argument against Sofaer's ‘two factual contentions: 1) that the “negotiating record” showed a failure on the part of US. negotiators to obtain Soviet agreement to the traditional interpretation; and 2) that the ratification proceedings supported the broad interpretation or were ambiguous. Senators Levin and Nunn went on to attachan amendment to last year’s Defense ‘Authorization BI, which has so far block- ed the administration from conducting SDI tests permitted only by the broad inter- pretation My own efforts, meanwhile, focused more heavily on the constitutional claim that Sofaer was developing as he found it increasingly difficult to sustain his factual claim concerning the Nixon admin- istration’s 1972 testimony. In joint hearings of the Foreign Relations and Judiciary Committees;"T sought to examine a ques- ‘tion never before posed in 200 years of con- stitutional history: Can the President unilaterally and fundamentally change a treaty by “reinterpreting’” it in disregard of Executive representations originally tendered to the Senate? Testimony by eminent constitutional scholars—answering this question decisively in the negative—helped lay the groundwork for S. Res. 167, “The ABM ‘Treaty Interpretation Resolution.” In that Resolution, Ise forth relevant constitution- al principles and contemporary facts, ‘which combined into an inexorable con- clusion: that only the traditional interpreta- tion of the ABM Treaty is valid constitutionally, as well as under interna- ‘ional law. In September 1987, when the Foreign Relations Commitee approved S. ‘Res. 167 and sent itto the full Senate, the ac- ‘companying committee concluded with sharp words conceming the Reagan administration's legal machinations: ‘TheCommitteecan find no evidence to contradict the conclusion thet the ‘Reagan administration's “reinterpreta- tion” of the ABM Treaty constitutes the ‘most flagrant abuse ofthe Constitution's ‘treaty powerin 200 yeas of American his- ‘While the “reinterpretation” debate ‘has raised many complex and technical {questions of international and consti ‘onal law, beneath them all is a simple value with which every American i Familias the value of honesty. Insecking to distort the ABM Treaty through the sham of “reinterpretation” the administration has denigrated this value in the interest of pursuing 3 ‘Arms Contr Today September 1958Presidential dream—that the United States can find safety in the nuclear age through the erection of an antinuclear astrodome. Some in the Senate support this goal: others regard it as nave, file, and dangerous. But that debate aside, it should be taken as unarguably tue that ‘corrupting our own institutions and con stitutional processes is not an effective way to defend tho United States of America ‘This effort to deal with Sofaer’s con- stitutional claim helped to establish a legal and political basis for more formal action by the full Senate to address the treaty in- terpretation issue in connection with the INF Treaty. In January, after the treaty had ‘been submitted to the Senate and referred to the Foreign Relations Committee, I an- nounced atthe committee's first hearing on the treaty that I would, at the appropriate time, offer a “condition” designed to affirm the constitutional impermissibility of treaty “reinterpretation.” Shortly thereafter, my Senate par- ticipation was substantially interrupted by @ health problem. But other committee ‘members—Senators Sarbanes, Cranston, Dodd, Kerry, and Moynihan—stepped for- ‘ward to propose, support, and defend what they generously continued to call the Biden Condition. The purpose of the condition ‘was to lay to permanent rest Sofzer's legal doctrine, which threatened both the ABM ‘Treaty and the Senate's role in treaty- making. ‘The Sofaer Doctrine The Sofaer Doctrine had emerged sradually—in administration testimony, statements, and studies—during the prolonged “reinterpretation” debate. Ap- parently recognizing that the facts could not sustain their claim about the 1972 ratification proceedings Sofeer and his cal- leagues found themselves dependent on a legal argument thatthe Execitive is simp- Jy not bound by much of what it has told the Senate in seeking consent toa treaty’s ratification, In erystalline form, as ex- pressed in a March 17, 1988, letter to the Senate from White House Counsel Arthur Calvahouse, the Doctrine stated that the Executive is bound by a particular inter- pretation of a treaty only i that interpreta. ‘ion meets three criteria It must have been 1) "generally understood” by the Senate,2) “clearly intended” by the Senate, and 3) “relied upon” by the Senate. These criteria—so beguilingly straightforward and superficially unobjee- tionable—were described by Sofaer and his colleagues 2s “settled principles.” But in Arms Contr Tey. Septomter 185 ‘Senator Biden initiated the Conditon tothe INF ‘Treaty that sought to prevent the Executive from unilaterally reinterpreting a treaty con- trary to the original “shared understanding” held bythe Executive and the Senate, fact the Sofaer criteria were asserted with no constitutional basis—no reference tothe Antent of the Framers, to historical prece- dent, otto case law—and no reference to any source of constitutional authority. ‘Thesealleged “principles” had simplybeen invented for a specific and fraudulent pur- pose. Efforts to refute the Sofaer Doctrine faced two obstacles: a phalanx of Star Wars supporters who might in any case have placed the President's dream of strategic defense over constitutional principle, and the difficulty ofexplaining the implications of the Sofaer criteria. Afterall, everyone concemed could agree that if these tn- reasonably stringent criteria were met, the Executive would be bound. Itrequlzed con- siderable effort to focus Senators, mich ess Public interest, on the fact that in practice such criteria, if accepted, would be so dif ficult to meet that the Executive would al- most never be bound by its own presentation to the Senate: 1) How many Senators must speak on a given interpretation bofore it can be proven that the Senate “generally under- stood” that interpretation? 2) How, unless the Senate has affirmed a particular interpretation by means of a formal condition, can it ever be demonstrated that the Senate “clearly in- tended! a particular interpretation? 93) And if relied upon? means that particular interpretation was crucial to the Senate's action in approving a treaty or refraining from the imposition of a formal condition, how can the Senate's motivation ever be proven? ‘Yet, under the Sofaer Doctrine, these three difficult proofs would be required to forestall a “reinterpretation.” The Sofaer Doctrine was thus a claim of wide Execu- tive latitude to change a treaty’s meaning ‘by means of the assertion in the context of domestic law, of unreasonable criteria for ‘what may net be reinterpreted. Inprinciple, the Doctrinethreatened to nullify the Senate’s share of the Constitution's treaty power. As a matter of practicality, it threatened paralysis in American treaty-making—since the Senate's only recourse would be to attach elaborate and numerous conditions to ‘treaties in order to ensure that its under- standing becomes an integral and explicit part of a treaty’s ratification documents. Fundamental Flaw ‘The critical law in the Sofaer Doctrine ‘wasits fundamental inconsistency with the basic model of US. treaty-making, wherein the Executive negotiates a treaty, explains its meaning to the Senate, and is on that basis accorded consent to ratify. Instead, the ‘Doctrine called for the Senate toact affirm atively to demonstrate its understanding, intent, and motivation concerning every ‘treaty provision, lest that provision be sub- ject to any interpretation a President might later profer. In essence, the Sofaer Doctrine sought to overturn the well established principle that legislative intent may be registered not only explicitly but also—with equal sig- nificance—implicitly. The concept of im- plicit Senate understanding was ‘summarized in testimony by Professor Louis Henkin, chief reporter of the new Re- statement of US. Foreign Relations Lavo as follows: Where several (Executive] state ‘ments are made and there is general ac ‘epiance oftheir tonor tha is the Senate lunderstanding. Thats true in the ase of Senate consent to a treaty, ast would be inthe legislative history ofa statute In trath the Sonate’s understanding of, a treaty is usually implicit—that is, registered via acceptance of Executive rep- resentations. Indeed, the Sofaer Doctrine entailed a profound irony. Implicit under- standing Is most likely to occur on those points where thereisno controversy requir- ing explicit resolution; thus, by discounting implicitunderstanding, the Doctrine could render vulnerable to “reinterpretation”precisely those points on which there was full consensus at the time of ratification. ‘The “Negotiating Record” ‘One upshot of Sofaer’s sophistry was pervasive confusion about the legal sig- nificance of the so-called “negotiating record” of a treaty. It therefore bears em- phasis that there is, definitively, no such thing. Ironically, this was underscored by Sofaer himself when he testified in March 1987 that the search for the US. “record” — that is, forall documents and memoranda pertaining othe ABM Treaty negotiation— ‘was still under way and that documents were “continuing to turn up out of the boxes that are arriving in my office from various storage vaults.” This was 17 ‘months after Sofaer had placed the prestige Of his office and the honor of the United States behind a radical and unilateral US. revision of the ABM Treaty on the authority of the “negotiating record.” ‘The documents being assembled by Sofaer not only failed to meet any agreed definition of a “negotiating record,” they also had the most tenuous status under in- temational law. On matters of treaty inter- pretation, international law looks to the treaty fext as the primary source. Sub- sequent practice of the parties in im- plementing the treaty algo carries great ‘weight. True, in areas where the text and subsequent practice leave ambiguity, the original intent of the parties—as reflected in what they said in arriving at the treaty— ‘may have interpretive significance. But in and of themselves intemal US. govern- ‘ment memoranda have virtually no stand- ing under international law. And even documents shared by the parties represent no more than evidence as to where the nogotiating process stood at a given point. In the case of the ABM ‘Treaty, both the text (except when read perversely) and 13, years of subsequent practice (both be- havioral and rhetorical) supported the traditional interpretation. Nonetheless, the administration relied on a collection of then-classified U.S. documents—and, as ‘Senator Nunn discovered, a distorted read- ing of thosedocuments—as justification for asserting a radical revision ofthe treaty in the context of international law. The administration recognized, of ‘course, that the Presidents highest duty is to observe his domestic obligations under the Constitution. If, for example, a US. statute conflicts with an earlier US. weaty commitment, his constitutional imperative to obey the statute. The role of the newly ‘minted Sofaer Doctrine was to minimize Department, promulgated sohat came t0 be known as the “Sofaer Doctrine.” Many sonators argued thatthe doctrine wos a direct challenge the Senate'sadvice and consent role inthe making o treaties. such constitutional obligations, thereby freeing the Executive to act on its “geinterpretation” without constraint ‘under domestic law. Thus, in the effort to distort the ABM ‘Treaty, the roles of the “negotiating record” and the Sofaer Doctrine were analogous to a one-two punch—both llega. The “Two Treaties” Issue To deflect criticism, Sofaer and his al- lies relied heavily on what might be called the “two treaties” argument. Referring to the Exacutive’s two sets of treaty obliga- tions—under domestic and Intemational aw-—with respect to a given treaty, they raised a fearsome spoctor. IF the Executive is constrained by what it told the Senate, ‘ight not the United States someday find itself hamstrung vis-a-vis another nation, such as the Soviet Union, which was freeto apply a less restrictive interpretation of a ‘meaty? The message, in short: concern for constitutional niceties could disadvantage the United States on the global battlefield. ‘This argument appealed more effec- tively to emotion than to reason. It is, of course, possible to hypothesize a “two ‘reaties” case in which the Executive, per- haps inadvertently, presents an overly restrictive treaty interpretation to the Senate, Indeed, one can imaginesuchacase ‘even under the Sofaer Doctrine since ital- lows that some, albeit very little, Executive testimony may be binding. But in practice “two treaties” has not proven to be a problem, and it was profoundly revealing, ‘hat Sofaer and others were never able to point to a real-world example. Certainly, the ABM Treaty was not a case in point. Here it was not the Soviet ‘Union but the United States seeking to apply a less restrictive version. The inter- ‘protation still accepted by the Soviet Union ‘comported fully with themeaning original- ly presented to the Senate. ‘Nor, as a matter of principle, should it be accepted that differences could com- monly exist between what the Executive agreed to with the other party and the ex- planations provided to the Senate. Theze should be no such difference. It is the Executive's responsibilty to ensure suffi- cient clarity in a treaty, and in its explana- tions thereof to the Senate, so that no contlict exists between the shared under- standing ofthe partieson the one hand and ‘the shared understanding of the Executive and Senate on the other. Of course, in therare instancethatsuch conflict did arise and prove not resolvable by negotiation with the other party, the United States retains the option to ‘witheraw from a treaty. But as the Foreign Relations Committee concluded in report on the INF Treaty: [mihi largely hore! problems shouid be addressed if and hen it arises—not by a preemptive aeration of onstvational principles. The Senate Should not cept doctrine that assumes tnd protects carelesines or deviowsnes ‘on the part ofthe Executive? The Biden Condition Developed against the background of this controversy, the Condition had four crucial elements: 1) the principle that the original “shared understanding” held by the Execu- ‘tive and the Senate must govern US. inter- pretation and implementation of a treaty; 2) the principle that the basis for this common understanding is the Executive's formal representations to the Senate in seeking consent to ratification; 3)the principle that the Executive may ‘not, acting alone, adopt a new interpreta- tion of a treaty; and 4)a reference tothe Constitution as the source of these principles While it was obvious that Senate op- position to the Condition would be led by dedicated Star Warriors, the key question ‘was whether some administration loyalists could be won over by emphasizing the con- sttutional isate, including the direct ques- ton of Senate prerogative. To makethe case more palatable, Condition advocates were at pains to stress thatthe principle being af- Firmed did not lay torest the entire ABM in- terpretation issue—rather, only the legal claim. Passage ofthe Condition would not, they reiterated, resolve the ABM interpreta- ‘Arms Cntr eey_Seplnber 986tion debate, but simply confine it to a dis- ‘pute over facts concerning the “negotiating record” and the ratification proceedings of 1972. Nonetheless, bale lines were quickly drawn as the administration —perhaps in recognition ofthe weakness of the factual ‘ase—moved strongly to solidify the ranks ofits supporters in the Senate, including moderates, against the Condition. Both in the lead-up to the committee vote and before the vote on the Senate floor, exten- sive negotiations occurred on a “com- promise.” Invariably, the “compromise” proposals put forward by the administra. tion and its Senate loyalists had three characteristics 1D language introducing the concept of {international law: 2)language that would incorporate the Sofaer Doctrine criteria Ge, “generally un- derstood,” et.) into the Condition; and 3) deletion of any mention of the Con- stitution. To their credit, supporters of the Con- dition stood fast against these “com- promises," recognizing that each element was insidious: 1D proposed references to internation- al law carried an implication that the Ex ecutive might have the option to subordinate ts domestic obligations to US. international obligations (ie, what the Ex- ecutive told the Senate may be subor- dinated to the higher truth of the “negotiating record”); 2) introducing the Sofaer criteria into text designed to refute the Doctrine was clearly perverse; and 3) reference to the Constitution was imperative to demonstrate that the Senate ‘was asserting principles applicable to all treaties as opposed to imposing an ad fc policy on the INF Treaty. In April the Foreign Relations Com- nittee reported the INF Treaty to the full ‘Senateaftera contentious debateand adop- tion of the Condition on a 12-7 vote. As floor debate began, the treaty inter- pretation issue occasioned some worry in the arms control community that the con- troversy could delay oreven scuttle the INF ‘Treaty. Nonetheless, Majority Leader Robert Byrd—backed by Senators Nunn, Sarbanes, and Levin—took a firm stand in defense of constitutional principle. Inpreparation fora vote, Senator Byrd made a slight modification in the Biden Condition in order to protect it proce- durally from further amendment® With negotiations stalemated, Byrd made dear ‘is determination to let the matter be set- ted ona close vote if necessary, his position Arms Cont Tey. Septem 198 strengthened by a calculus that support for the INF Treaty was sufficiently strong that the treaty would prevail with or without the Condition. Finally, with a vote only hours away, Senator Bill Cohen—a stalwart Republican opponent of the “reinterpreta- tion"—made a valuable suggestion aimed at providing political “cover” for senators who did not wish to confront the President directly on a high-stakes ideological issue ‘but who recognized the validity oftheCon- dition. ‘Senator Cohen reasoned that while the factual claim of ambiguity in the 1972 Nixon administration testimony had al- ready been repudiated, it nonetheless remained an integral part ofthe mythology underpinning the “reinterpretation.” Therefore, why not take into account the possibility of “ambiguous testimony"? Since the Condition aimed only to affirm the principle thatthe original “shared un- derstanding” must govern treaty im- plementation, why not add a corollary that ‘would cover the situation alleged inthe ill- founded factual claim: to wit that where no “common understanding” has been reached between the Senate and the Execu- tive, a treaty will be interpreted in accord ance with applicable US. law? ‘One may only speculate about the in- temnecine discussions that ensued among administration representatives and their Senate supporters; perhaps historians will someday learn more. Since it followed logi- cally from the other elements ofthe Biden Condition, the Cohen corollary was readi- ly accepted by Condition advocates as a harmless add-on paragraph. Nonetheless, thischangeprecipitated the significant shift toward bipartisanship that Condition sup- pporters had hoped for More surprisingly, the administration seemed to acquiesce. Senator Specter, an ‘opponent ofthe Condition, noted that sud- denly the administration's position was “enormously different from what [it] has staunchly contended up to... recently." He ‘accused the administration of “uncondi- tional surrender ... joined in by a number ‘of my colleagues an this side of the aisle” (On May 26, with Senators Nunn, Sar- banes, Levin, Cranston, and Dodd leading the debate, and with key Republican leaders including Dole, Lugar, and Kas- sebaum shifting position tojoin in support, the Senate voted 72.27 in favor ofthe Biden Condition. ‘Although this result was quite suffi- cient to sound the death knell for the Sofaer Doctrine, the victory was subsequently sharpened before the final vote on the treaty the following day when opponents of the Condition sought to raise the issue anew with three proposals. ‘Two of the proposals, sponsored by Senators Wilson and Specter, sought to in- troduce the concept of international law. Condition advocates opposed this, as they hhad during the “compromise” negotie- tions, on the grounds that the Condition was directed solely at domestic law and that the proposed language not only con- fused the issue but implied the possiblity that obligations under international law could commonly conflict with and super- cede the imperatives of domestic law. Both amendments were overwhelmingly defeated. Ina third proposal of particular sig- nificance, Senator Specter offered an amendment that would have added lan- guage afirming theSofaer criteria, Whereas the vole on the Biden Condition had been an indirect vote on the Sofaer Doctrine, the Specter amendment afforded an oppor- tunity to voteon the Doctrine directly: After advocates of the Condition had reem- phasized the perversity of affirming the Sofaer Doctrine in a provision intended to repudiate it the Specter Amendment was rejected 67-30—a result that served to une ercore the significance ofthe earlier vote ‘on the Condition itself. ‘The Reagan Letter: A Final Skirmish, On June 10, having ratified the INF ‘Treaty, President Reagan conveyed a for- ‘mal message tothe Senate clearly intended by administration lawyers to dilute the Senate's action and to cast doubt on the ‘binding significance of the Biden Condi- tion. The President declared that he could not “accept the proposition thata condition in a resolution of ratification can alter the allocation of rights and duties under the Constitution.” Ina formal response, the chairman of the Foraign Relations Committee, Senator Pell, emphasized that the Biden Condition ‘was not aimed at altering the Constitution but at demonstrating the Senate's unwill- Ingnoss to acquiesce in an administration effort to undercut the Constitution's alloca- tion of a joint Executive Senate role in the exercise ofthe Treaty Power. As tothebind- ing significance of the Senate's action, Senator Pell quoted from the committee report on the INF Treaty: _ [The Condition s binding under domestic law, and obtains its binding e& {ect because the President inthe absence of the resolution of ratification, lacks authority to participate in the Treaty’s ratification. He obtains such authority{hrough the resolution of ratification and is govemed by eny stipulations by which the Senate conditions ts consent. Tn sum, the Present may not act ‘upon the Senate's consent without honor ing this Condition. Nothing that he ors administration does, by statement or c- tion, whether before or after the act of ratification, can elte the binding effect of any condition which the Sonate pleces ‘upon its consent to treaty ratification. If the President brings the INF Treaty into force, the Condition takes effect. Senator Pell concluded: “The Sofaer Doctrine has been formally and over- whelmingly rejected. And nothing in the President's post-ratification letter has changed or could change that fact.” As ‘Senator Nunn putit: “The Presidents leter Isentertaining but irrelevant... Thetreaty, including this Condition, is now the ‘supreme aw of theland, And the President ‘can no more change it with a leter than he can change any other law with a letter.” Implications for Future Treaties (One lesson that should not be drawn from this saga is the need of the Senate to see a treaty’s “negotiating record.” In the case of the INF Treaty, some senators demanded the “recon” by way of making ‘point about the ABM controversy. AS it happened, the Reagan administration com- plied since this played conveniently intoits ‘case thatthe “record” was where truth was to be found. But there are sound reasons ‘why this should not become a precedent. First, Senate perusal of every key treaty’s “record” could impair negot tions, inhibiting candor and inducing pos- turing, Second, such documents—which are generally “snapshots” of the negotiat- ing process and have no clear standing — would divert the Senate's attention from the central aim of the ratification process, which is to build a clear “shared under- standing” with the Executive as to the meaning of each treaty’s text and the obligations it entails. The overall effect— fully exposed negotiations followed by a far more complicated Senate review— ‘would weaken the treaty-making process and thereby damage American diplomacy. Implications for the ABM Treaty As Its supporters repeatedly em- phasized, the Biden Condition was not designed to resolve the question of alleged ambiguities in the genesis, design, and im- plementation of the ABM Treaty. Accord- ingly, it could not constitute a final ispocition of the issue of ABM Treaty in- 8 torpretation. Rather, the provision was in- tended to repudiate the Sofaer Doctrine by affirming certain constitutional principles that were brought into question during the ABM Treaty debate. ‘The implications for the ABM Treaty, however, are clear and profound. As the floor debate drew to 2 close, senators on both sides of the “reinterpretation” issue Senator Nunn: “{The Condition) af- firms enduring constitutional principles which apply to the interpretation of all Uwenties, including the ABM Treaty." Senator Levin: “fTThe principles set forth in this amendment apply to all treaties. That is why we fought so hard to keep the words in this amendment ‘the ‘Treaty Clauses ofthe Constitution.” Senator McClure (a Condition oppo- nent): "This is not some one-time deal. This amenciment would affect all treaties, not jst the treaty at hand.” “The Senate's formal repudiation of the ‘Sofaer Doctrine means that the case forthe ‘ABM Treaty “reinterpretation” now rests solely on the decaying, reeds of Sofacr’sfac- tual claims—claims already widely and justifiably denigrated. They are, on their face, inconsistent with any fair reading of the text of the ABM Treaty. They have been rebutted by Senator Nunn’s extensive study of the negotiating memoranda and the ratification procoedings. They have been rejected by all but one ofthe former of- ficils who negotiated and presented the ‘ABM Treaty to the Senate. And no less than former President Nixon—who signed, sub- mitted to the Senate, and ratified the ABM ‘Treaty—added his voice in an April 15, 1988, comment to the American Society of Newspaper Editors: ‘As fara what was presented othe Senate was concerned it was what weeall the “narrow” interpretation. Thre iano {question about tha In my judgment, the facts of the case are such thatthe Sonate, by enacting the Biden Condition, has effectively declared the “reinterpretation” of the ABM Treaty to beinvalid and unconstitutional. Theres in- deed Tittle left of the ABM Treaty “reinterpretation,” other than the memory ofa failed and disgraced effort to distor the Constitution and a solemn treaty obligation of the United States—an obligation in- curred in pursuit of the American national security interest which weshould continue to observe fr the same compelling reason. This isnot to say thatthe future of the ABM Treaty regime is assured. Vice Presi- dent Bush has already pledged to deploy strategic defenses a sep dhet would ental abrogation of the ABM Treaty. Butthatissue can be addressed, in honorable public debate, on its strategic merits. ‘Meanwhile, in the wake of the Senate's recent action, we have added reason toad~ mire the wisdom of the Founding Fathers. In the words of Alexander Hamilton, the Framers of the Constitution considered the division of the Treaty Power between the ‘Executive and the Senate to be “one of the best digested and most unexceptional parts ofthe plan.” Though renowned as anadvo- cate ofastrong presidency, Hamilton recog- nized that it would be “utterly unsafe and improper” to entrust the power of making treaties inthe President alone. ‘The essence ofthe Treaty Powers that the President and theSenateare partnersin the process by which the United States centers into, and adheres to, international ‘obligations. Iam proud that the Senate has acted touphold that constitutional partner- ship. NOTES " Resolution of ratification” isa misleading term, in that it serves only as the vehicle for ‘Senate consnt to the act af ratification by which the President acting for the United Stats, places ely into fore. US. Congress. Sonate. Foreign Relations and Judiciary Committees. The ABM Trent and the Constitution, Joint Hearings, March-April 1987. This volume includes Senator Nunn's study, 8 US. Congress. Senate. Committee on Foreign Relations. The ABM Thety Interpretation Resolution, Report, September 22, 1987. This ex- tensive report provides an exegesis of Sofser’s factual and constitutional dams, and a detailed rebuttal ofboth, in view of Senate passage ofthe “Levir-Nunn” amendment, the Resolution was never brought up for consideration by the Fall Senate *The fall tile ofthis preeminent compen: dum of US law inthe realm of foreign affairs Restatement ofthe Lino (a, Foreign Relations Laxd of the United Slates, 1988, forthcoming. US. Congress. Senate. Committee on Foreign Relations. The INF Treaty, Report, April 14,1988, This report contains an extensive dis- ‘cussion of the Condition and its legal ramiica- ® Technically, the Biden Condition was an amendment to the resolution of ratification. Under paviamentary procedure, an amendment to an amendment—a so-alled “second degree amendment"—precludes further amendment. ‘Byrd's modification was such a second degree amendment. Certainly one factor was that, with the President and many aides having ast departed for the Moscow summit the “administration” at this point was led by Hovard Baker, White House Chief of Stati—but also a former Senate Majority Lender and a manattuned tothe adage {hat our government consists of laws, notes ‘Arma Cotet Talay. Seplonber 1888