FLANK DOCUMENT AGREEMENT TO THE CFE TREATY (Senate - May 14, 1997)

Mr. KERRY. Mr. President, before the Senate this afternoon is the task of taking the appropriate action, in fulfillment of the Senate's vital constitutional advice and consent responsibility and power, to adapt the Conventional Forces in Europe [CFE] Treaty to the constant change that affects our world--change which has been more sweeping and profound in Europe in the past 7 or 8 years than at any time in the preceding 40...

I am confident that the great majority of our colleagues will support the Flank Agreement. But I am troubled by the way in which some have transformed the constitutional treaty advise and consent process into something of an obstacle course that involves things that aren't directly in the treaty.

The conditions for ratification which the majority required before it would permit the Foreign Relations Committee and then the full Senate to perform the advice and consent role, fall into four rough categories. I find several of them--primarily those which the Senate appropriately and routinely attaches to treaties--beneficial and desirable. I find several others reflect a degree of fear and anxiety on the part of some Members, the basis for which I cannot ascertain--but which, all things told, appear unlikely to do fundamental damage to what should be our objective here: To keep the CFE Treaty in operation in order to continue to derive its benefits to security in Europe and a reduction in the risk of conflict there.

The third category, Mr. President, consists of a condition whose objective may have been desirable but which inadvertently or inadvisedly singles out one nation for implicit criticism when the kinds of actions it is implicitly criticized for taking may place it in the company of other nations in its region, and when it would be more appropriate to address these situations as a group so that all nations are held accountable to the same treaty standards. I speak of paragraph F of condition 5 which, in the form approved by the committee, singles out Armenia and requires a report directed solely at its activities and whether they comply with the terms of the treaty. I will address that matter separately, and will offer an amendment to establish what I believe is an important balance and equity with respect to the entire Caucasus region.

Then, Mr. President, there is condition 9 which forms a special category all its own. I understand why a Senator who has not been deeply involved in the Senate's processing of the CFE Flank Agreement may be puzzled by the fact that condition 9 pertains to the ABM Treaty. In fact, I have been involved in the effort to move the Flank Agreement to Senate approval, and I cannot discern a reasonable or defensible rationale to link the issue of multilateralization of the ABM Treaty to action on the CFE Flank Agreement except for the reason of taking something that ought to happen that is important to our security and linking it to something that is not necessarily yet thoroughly considered by the Senate.

But even so, I do believe I understand what is going on here. Proposed condition 9 is hostage-taking, pure and simple. I think there are some who have a fundamental aversion to arms control agreements and want the United States to simply go it alone in the interdependent world of the last decade of the 20th century. Unfortunately they insist that unless the President concedes to their position on the unrelated issue of ABM multilateralization, they will refuse to let the United States ratify the CFE flank agreement.

I readily agree that the issues surrounding the ABM Treaty are both vital and very controversial. The Committee on Foreign Relations, with the contribution of the Committee on Armed Services, should devote considerable time and energy to thoroughly exploring those issues, and then the Senate as a whole should carefully determine how to proceed with respect to them.

But I want to register the strongest possible dissent from this tactic of hostage-taking. In my judgment these issues are separate and ought to be treated separately. Treaties are fundamentally different than bills on which this Congress acts on a daily basis. We ought to approach our advice and consent responsibility--a solemn constitutional duty--with more abstract side bar process. We should not load up resolutions of treaty ratification with essentially nongermane amendments.

Further, purporting to resolve the complex and very important ABM issues by attaching a condition to a wholly unrelated treaty--and without thoroughly airing and deliberating on those issues at the committee level via hearings and other means--is risky and ill-advised. Because I understand the power of the majority, perhaps the most significant feature of which is its considerable control over determining whether and when the Senate will address important issues, and because I believe it is of great importance that this flank agreement be considered and acted on by the full Senate, and that the Senate do so prior to the May 15 deadline which is imminent, I did not seek because of my aversion to condition 9 to derail the Foreign Relations Committee's action on the resolution of ratification last week, but I expressed my concerns which were published as additional views in the committee's report on the resolution.

Mr. President, as Senators, every one of us is sworn to uphold the Constitution. In my judgment that requires maintaining the separation of powers which plays so critical a part in maintaining the equilibrium of our unique form of government which has permitted it to survive and function successfully for over 200 years. Maintaining the separation requires a careful allegiance to preserving and protecting not only the constitutional obligations, responsibilities, and prerogatives of the legislative branch, and the Senate in particular, but also of the judicial and the executive branches.

We in this Chamber are most accustomed, understandably, to rising to the defense of the responsibilities, role, and prerogatives of our own branch and our own Chamber. I have joined many times in such efforts. Indeed, the very fact that the CFE Flank Agreement is being considered by the Senate is attributable to an effort to assert that the Senate properly should act on that agreement under the treaty clause of the Constitution because it substantively alters the original CFE Treaty.

It is my view, and, I believe, the view of most Senators on both sides of the aisle who have carefully examined the issue, that the ABM Demarcation Agreement also makes a substantive change in a treaty to the ratification of which the Senate previously gave its advice and consent--thereby necessitating that U.S. ratification of the Demarcation Agreement can occur only if the Senate gives its advice and consent by means of the complete constitutional process.

But the ABM Succession Agreement is a different matter entirely. It effects no substantive change in the ABM Treaty or any other treaty.

I readily agree that the issues surrounding the ABM Treaty are both vital and very controversial. The Committee on Foreign Relations, with the contribution of the Committee on Armed Services, should devote considerable time and energy to thoroughly exploring those issues, and then the Senate as a whole should carefully determine how to proceed with respect to them.

But I want to register the strongest possible dissent from this tactic of hostage-taking. In my judgment these issues are separate and ought to be treated separately. Treaties are fundamentally different than bills on which this Congress acts on a daily basis. We ought to approach our advice and consent responsibility--a solemn constitutional duty--with more abstract side bar process. We should not load up resolutions of treaty ratification with essentially nongermane amendments.

Further, purporting to resolve the complex and very important ABM issues by attaching a condition to a wholly unrelated treaty--and without thoroughly airing and deliberating on those issues at the committee level via hearings and other means--is risky and ill-advised. Because I understand the power of the majority, perhaps the most significant feature of which is its considerable control over determining whether and when the Senate will address important issues, and because I believe it is of great importance that this flank agreement be considered and acted on by the full Senate, and that the Senate do so prior to the May 15 deadline which is imminent, I did not seek because of my aversion to condition 9 to derail the Foreign Relations Committee's action on the resolution of ratification last week, but I expressed my concerns which were published as additional views in the committee's report on the resolution.

Mr. President, as Senators, every one of us is sworn to uphold the Constitution. In my judgment that requires maintaining the separation of powers which plays so critical a part in maintaining the equilibrium of our unique form of government which has permitted it to survive and function successfully for over 200 years. Maintaining the separation requires a careful allegiance to preserving and protecting not only the constitutional obligations, responsibilities, and prerogatives of the legislative branch, and the Senate in particular, but also of the judicial and the executive branches.

We in this Chamber are most accustomed, understandably, to rising to the defense of the responsibilities, role, and prerogatives of our own branch and our own Chamber. I have joined many times in such efforts. Indeed, the very fact that the CFE Flank Agreement is being considered by the Senate is attributable to an effort to assert that the Senate properly should act on that agreement under the treaty clause of the Constitution because it substantively alters the original CFE Treaty.

It is my view, and, I believe, the view of most Senators on both sides of the aisle who have carefully examined the issue, that the ABM Demarcation Agreement also makes a substantive change in a treaty to the ratification of which the Senate previously gave its advice and consent--thereby necessitating that U.S. ratification of the Demarcation Agreement can occur only if the Senate gives its advice and consent by means of the complete constitutional process.

But the ABM Succession Agreement is a different matter entirely. It effects no substantive change in the ABM Treaty or any other treaty. It does one and only one thing: It codifies the status with respect to the treaty of the states which succeeded to the rights and obligations of the former Soviet Union. It is a function of the executive branch, not the legislative branch, to determine if new nations which descend from a dissolved nation inherit the predecessor nation's obligations such as those under a treaty. This is not a matter of defending a Senate right or obligation or prerogative; the Senate has no right, obligation, or prerogative to defend with respect to determination of succession.

This principle has been illustrated on many occasions by its application. Recently, and of direct relevance, it has been applied in a number of circumstances with regard to the dissolution of the Soviet Union.

I believe I understand the objective here, Mr. President, and I do not believe it is the defense of a nonexistent constitutional principle or a nonexistent constitutional right or prerogative of the Senate. This is a wolf in sheep's clothing--a maneuver by opponents of the ABM Treaty to gain strategic advantage in their quest to demolish the ABM Treaty. The objective is to give them one additional shot at killing the Treaty.

I am prepared for the debate on the ABM Treaty. I look forward to thoroughly assessing whether this treaty continues to serve our Nation's security interests as I strongly believe it has well served those interests since its ratification. I look forward to examining in detail the probable reactions in Russia and elsewhere if we abandon the treaty.

But let me return to an earlier point that ABM opponents have shown they are willing to ignore. The Senate is not currently debating the ABM Treaty. The matter that is before us today is the Conventional Forces in Europe Treaty Flank Agreement. Condition 9 is an unwise, unnecessary, destructive digression from what we should be doing here today. It is yet another example of distressing political expediency too often illustrated in this Chamber in recent years. Fortunately, that expediency rarely has sunk to the level of sacrificing a vital constitutional principle--such as the separation of powers--for the sake of tactical gain. But, Mr. President, let there be no mistake: It is sinking to that level today in condition 9.

When we do such things, Mr. President, there is a price to be paid. Either we who serve here today will pay that price at a later time, or those who follow in our footsteps will pay that price. We disserve the Constitution we are sworn to uphold when we permit that to occur.

I must remark, Mr. President, on the peculiar and troubling silence of the administration on this issue. The administration, by position and motivation, is best situated to defend the constitutional prerogatives and responsibilities of the executive branch. And yet, for some unknown reason, perhaps a tactical calculus, or exhaustion, or distraction--for some reason--the administration never even joined this issue. I say to the administration: Despite the appearances given by your silence and inaction on this issue, this truly does matter in the long run. And this administration, and others to follow it, will regret this day. Much more is being ceded here than the authority to decide what nations properly hold the obligations of the ABM Treaty that previously were held by the Soviet Union.

Mr. President, I strongly support the ratification of the Flank Agreement. Before we vote on the resolution of ratification, I will offer the amendment I referenced earlier to address the Caucasus region, which I hope will be approved. Then, despite the reservations about condition 9 I have enunciated, because of how important I believe the CFE Treaty is and will continue to be to European security and stability and therefore to world security and stability, I will vote to approve the resolution of ratification and urge all other Senators to do so.

[Page: S4459]