- The Washington Times - Tuesday, December 30, 2008



In the backwaters of the news like motor vehicle accidents, reports recently appeared that the United States and the Republic of Georgia are to sign a strategic partnership treaty next Sunday, much to the consternation of Russia.

President Bush will unilaterally obligate the United States. Neither the Senate (pursuant to its constitutional role in ratifying treaties) nor the House will have any say. While the reduction of the Senate and House to ciphers in national security matters through executive agreements flouts the Constitution, it has become as commonplace as the rising and setting of the sun. It is no longer news.

Alexander Hamilton, who advocated a muscular executive, voiced the unambiguous consensus among the Founding Fathers that an unchecked president in foreign affairs would be dangerous - even with George Washington at the helm.

Accordingly, the treaty power was divided between the president and Senate in Article II, section 2, clause 2. Hamilton elaborated in Federalist 75: “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a president of the United States.”

The exclusion of the Senate from an impending U.S.-Georgia strategic partnership treaty is fraught with mischief. It is not obviously good for the United States - even if it may be good for Mr. Bush’s instant approval rating.

Several months ago, the United States clashed with Russia over its conflict with Georgia regarding disputed South Ossetia. U.S. warships sailed amidst its Russian counterparts in the Black Sea to deliver humanitarian aid to Georgia. Vice President Dick Cheney traveled to the region to promise Georgia billions in economic assistance. Republican presidential candidate John McCain stood shoulder-to-shoulder with Hotspur-like Georgian President Mikheil Saakashvili and bugled, “Today, we are all Georgians.” Georgia’s ambition is NATO membership, which would obligate the United States to treat an attack by Russia on Georgian territory as an attack on the United States itself.

A U.S.-Georgia partnership treaty may provoke Russia to upgrade its relations with Iran, including assisting or acquiescing in Iran’s nuclear ambitions by using its unilateral veto power in the United Nations Security Council to block sanctions. The partnership treaty could also spur Russia into enhancing its support for Georgian secessionist elements in Abkhazia or fomenting unrest in the Ukraine among Russian ethnics. Finally, it could be the first step toward U.S. military clashes with Russian forces. Remember where the seemingly inconsequential 1914 assassination of Archduke Ferdinand in Sarajevo took the world.

In sum, the U.S.-Georgia partnership in context is a “treaty” in the constitutional sense because it profoundly affects U.S. national security interests in the Caucasus, Russia, Iran, the Ukraine and otherwise. Other international arrangements with comparable national security implications have been subject to Senate ratification as treaties: the North Atlantic Treaty in 1949; the Mutual Defense Treaty with South Korea in 1954; and the Treaty of Mutual Cooperation and Security with Japan in 1960.

The United States Supreme Court blessed the constitutionality of a narrow category of “nontreaty” executive agreements (with no national security ramifications) concluded in conjunction with the president’s recognition of foreign governments in United States v. Belmont (1937) and United States v. Pink (1942). In both cases, the court upheld the so-called “Litvinov Assignments” of certain legal claims of the Soviet Union to the United States and the validity of Soviet nationalization decrees as inter-related elements of President Franklin Roosevelt’s recognition of the Soviet government.

From these tiny constitutional acorns, however, have emerged mighty executive agreement oaks that establish far-reaching military commitments that should have but have not been subject to ratification by the Senate as treaties. In 1953, President Dwight D. Eisenhower concluded the Pact of Madrid with Spain’s Francisco Franco. It consisted of three overlapping executive agreements like Venn diagrams. The United States agreed to defend Spain from any invasion. Spain agreed to provide bases for the United States. The United States would need Spanish authorization before using the bases to fight other countries, except in a Soviet surprise attack, in which case the United States could employ them at will.

This latter provision was secret to avoid domestic criticism in both countries. Franco’s regime was based on nationalist ideology that would have rebelled at any apparent subordination of Spanish to U.S. interests. Popular sentiments in the United States were hostile to Franco and frowned on U.S. support for a semi-fascist government.

The U.S.-Georgia executive agreement has substantial antecedents in addition to the Pact of Madrid. The United States signed similar strategic partnerships with Estonia, Latvia and Lithuania in 1998, when the Baltic nations were seeking NATO membership in the face of fierce opposition from Moscow. The United States and Ukraine on Dec. 19 signed a strategic accord that calls for a U.S. diplomatic post in Crimea, a Russian-speaking area where Russia’s Black Sea Fleet is based.

The Senate brings sober second thoughts and different perspectives to treaties conceived and negotiated by the president, who may be myopically motivated to conclude an agreement for immediate popularity. The public is often euphoric about any international agreement touted as indispensable to peace and national safety. The Senate, of course, is not infallible. Errors can be made in either blocking wise treaties or ratifying imprudent compacts.

But over two centuries, the Senate role has been constructive. Among other things, it has saved the nation from the ill-conceived League of Nations, SALT II, the Comprehensive Test Ban Treaty, and the International Criminal Court. The Senate also substantially improved the Panama Canal Treaties.

If the Senate does not reassert itself, its treaty power will disappear like the Cheshire cat. Even major arms control agreements will become unilateral executive exercises. An empire will have replaced a republic.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of “Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.”

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