FPI Bulletin: White House Plans to Bypass Senate on Test Ban Treaty

August 8, 2016

The Washington Post reports that “President Obama has decided to seek a new United Nations Security Council resolution that would call for an end to nuclear testing.” Going to the Security Council could represent a deliberate effort to bypass the Senate, which rejected the Comprehensive Nuclear Test Ban Treaty (CTBT) in 1999. Despite Obama’s adamant support for CTBT, senior officials have consistently pledged to pursue a nuclear test ban by means of a bipartisan dialogue with the Senate. Any effort to enact a test ban through the Security Council without the consent of the Senate would both violate these promises and subvert the checks and balances that enable lawmakers to restrain presidents in matters of national security.

It is not yet clear whether the President seeks to bypass the Senate entirely or merely receive a gesture of support from the United Nations. Jack Goldsmith, a Harvard law professor and former assistant attorney general, cautions that the proposed resolution may be little more than a rhetorical device, rather than a legal instrument. Goldsmith notes that according to both the Post and a White House spokesman, the resolution will “call on” states to ban nuclear tests, rather than imposing such a ban as a matter of international law.

The potential for an outright ban is what concerns Sen. Bob Corker (R-TN), chairman of the Senate Foreign Relations Committee. He told the Post, “This is a plan to cede the Senate’s constitutional role to the U.N. … It directly contradicts the processes that are in place to make sure that Congress appropriately weighs in on international agreements.”

What remains beyond a shadow of a doubt is that the Obama administration promised on multiple occasions to respect Senate prerogatives on the CTBT. In 2009, when President Obama first laid out his nuclear policy agenda, he said, “my administration will immediately and aggressively pursue U.S. ratification of the Comprehensive Test Ban Treaty.” (Emphasis added)

In September 2011, Ellen Tauscher, the top arms control official at the State Department, explained that the administration was “committed to taking a bipartisan and fact-based approach with the Senate” with regard to the CTBT. Tauscher specifically faulted the Clinton administration for rushing the initial attempt at CTBT ratification in 1999, saying that “The Treaty was brought to the floor without the benefit of extensive Committee hearings or significant input from Administration officials and outside experts.” A few days later, Tauscher observed at a conference of CTBT signatories, “We will need the support of the Senate and the American people in order to move ahead.”

Administration officials have repeatedly called for such a cooperative approach. In 2012, Tauscher’s successor, Rose Gotemoeller, called for a patient educational campaign on behalf of the CTBT. “We know that the key underlying issues are very technical in nature and we want people to absorb and understand the rationale behind it,” Gotemoeller said. In 2014, Gotemoeller acknowledged the frustration of CTBT advocates, who had been waiting for the “aggressive” approach to ratification that Barack Obama had promised in 2009. Still she insisted, “First comes education, and then comes discussion and last and most importantly, comes debate. It is only through that process that you get to a place where a vote could happen.” Last fall, at the United Nations, Gotemoeller reiterated that working with the Senate is the only way forward. “Senators should have every opportunity to ask questions – many, many questions – until they are satisfied,” she said, “That is how good policy is made and that is how treaties get across the finish line.

The perennial delay of a ratification vote led arms control advocates outside the administration to begin pressing for a Security Council resolution as a means of bypassing the Senate. While testifying before the House in December 2015, Gotemoeller unequivocally rejected such proposals. She said, “I have been in constant battle with our NGO colleagues over this issue. We do not agree with this notion.”

With some alarm, Congress revisited the issue in mid-July, after the Washington Post reported that the proposal to bypass the Senate was under active consideration at the White House. Since Gotemoeller was not scheduled was not scheduled to testify, a House panel sought information from Robert Scher, the Assistant Secretary of Defense for Strategy, Plans, and Capabilities. Scher explained that he had consulted Gotemoeller before the hearing “and she assured me that there is nothing that she is thinking of.”

Scher’s remarks imply that within the White House of there were advocates of bypassing the Senate, yet the State Department firmly opposed a reversal of the cooperative approach it has pursued for years. One reason to avoid a confrontational approach is that Congress has continually appropriated funds for the CTBT Organization Preparatory Commission, a body created under the CTBT to build up the verification mechanisms that would be required if and when the treaty enters into force. An effort to bypass the Senate might result in an abrogation of congressional support for the Preparatory Commission.

With only five months remaining in President Obama’s tenure, the White House is likely to clarify soon how it hopes to address the CTBT issue. In light of competing views within the administration, there is reason to hope that it will continue to favor a cooperative approach, while approaching the U.N. for help with implementing existing agreements, not in order to bypass the Senate.

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