As Trump Abandons Open Skies Treaty, Senator Markey and Rep. Panetta Introduce Legislation to Prevent Trump from Withdrawing from International Treaties without Congressional Approval
Washington (May 21, 2020) – Senator Edward J. Markey (D-Mass.) and Congressman Jimmy Panetta (CA-20) today introduced the Preventing Actions Undermining Security without Endorsement (PAUSE) Act to prevent a U.S. president from withdrawing from international treaties without Congressional approval. Today, President Donald Trump has announced his intent to withdraw from the “Treaty on Open Skies” that has contributed to Euro-Atlantic security since it entered into force in 2002. The President’s decision seemingly violates the Fiscal Year 2020 National Defense Authorization Act (NDAA) that requires the Department of Defense to make a series of certifications 120 days in advance of triggering the Treaty’s withdrawal clause. Withdrawal or termination of the Open Skies Treaty would deprive U.S. allies and partners of the benefits derived from observation missions over Russian territory and Russian occupied Eastern Ukraine, missions that have vastly outnumbered Russian overflights of U.S. territory since entry into force of the treaty.
The PAUSE Act creates a statutory role for Congress to affirmatively approve the withdrawal or termination of any Treaty to which the Senate has provided its advice and consent. President Trump’ has indicated that he could take similar action as he did today with Open Skies, to withdraw or terminate U.S. involvement in the North Atlantic Treaty (NATO), the 1953 Mutual Defense Treaty with South Korea, the New Strategic Arms Reduction Treaty with Russia (New START), and other treaties that the Senate has ratified.
“President Trump’s reckless withdrawal from the Open Skies Treaty will have a lasting impact on our ability to track Russian military activity that could threaten the interests of the United States and our allies. Congress can wait no longer to assert our constitutional prerogative,” said Senator Markey, a member of the Senate Foreign Relations Committee. “Congress’s role over treaty withdrawal has remained uncertain for far too long. Our founders intended that no U.S. president should have full control of treaty powers. I’m proud to partner with Congressman Panetta in this effort to limit the damage that a reckless President can do – not only to the international treaties that underpin our security, but also to the reputation of the United States for keeping our word. At this moment, when we desperately need U.S. global leadership to fight the a global pandemic, President Trump should not run roughshod over treaties that contribute to our national security and that of our allies.”
“The decision to withdraw from the Open Skies Treaty is completely counter to our national security interests and demonstrates continued disregard for our alliances and arms control accords,” said Congressman Panetta. “This is particularly dangerous as countries around the world collectively respond to the COVID-19 pandemic. The PAUSE Act will prevent the administration from stepping back from our national security and reinforce our nation’s responsibility to step up as a leader of the international community.”
A copy of the PAUSE Act can be found HERE.
U.S. Courts have not ruled on the role of Congress in the withdrawal or termination of an international treaty. The 1979 Supreme Court case decision in Goldwater v. Carter, 444 U.S. 996 (1979), did not create precedent as the Supreme Court directed the lower court to dismiss the complaint and did not address the constitutionality of President Carter’s decision to terminate the Sino-American Mutual Defense Treaty with the Republic of China. Alexander Hamilton argued in Federalist No. 75 that no president should have full control of our treaty powers. He suggested that Congress should have a role, but that role has never been defined when it comes to exiting a treaty. Thomas Jefferson argued that since treaties are like law, “it is understood that an act of the legislature alone can declare them infringed and rescinded.”
Specifically the PAUSE Act would:
- Require a certification from the Secretaries of Defense and State, in consultation with the Director of National Intelligence, 180 days before initiating a withdrawal or termination from any international treaty, which explains the justification for that action, confirms that the United States has notified all other countries to that treaty of its decision, confirms that such an action is in the U.S. national security interest, and confirms they have developed alternative confidence building measures to make up for the loss of benefits the treaty offered; and
- Requires, in the event that the Secretaries of Defense and State make that certification, that both Houses of Congress must approve the decision to withdraw or termination through passage of a joint resolution.
Last year, Congressman Panetta introduced H.R. 5149, the Open Skies Treaty Stability Act. The bipartisan legislation requires the President certify to Congress that exiting the treaty is in the best interest of U.S. national security, and develop a comprehensive strategy to mitigate against reduced military capability.
“It makes no sense that the President can withdraw from treaties without congressional input, even though it takes Senate approval to ratify treaties,” said Tom Collina, Policy Director, Ploughshares. “President Trump is—before our eyes--destroying the arms control structure that has kept us safe for the past 50 years. Congress must play its vital oversight role on international agreements before there are no more left to save. I thank Senator Markey and Rep. Panetta for their leadership on this crucial issue.”
“The Trump Administration's reckless abandonment of treaty after treaty has put this nation at risk,” said John Tierney, Executive Director, Council for a Livable World. “There is no doubt that America First means America Alone. It is imperative the Congress intervene before the Trump Administration undermines the width and breadth of the global security infrastructure.”
“A unilateral U.S. exit from Open Skies would undermine our security and that of our European allies, all of whom strongly support the treaty,” said Thomas Countryman, former U.S. Acting Undersecretary of State for Arms Control and International Security, and current chair of the board, Arms Control Association. “It has the effect—and perhaps this is the intention—of signaling a diminished U.S. commitment to its NATO allies. I welcome Senator Markey and Representative Panetta’s PAUSE Act to give Congress a role in deciding when the United States withdraws or terminates an international treaty to include Open Skies.”