Michael KreponAdieu, Open Skies?

Lyric of the week:

“Excuse me while I kiss the sky” — Jimi Hendrix

Quote of the week:

“I thank you God for this most amazing day, for the leaping greenly spirits of trees, and for the blue dream of sky and for everything which is natural, which is infinite, which is yes.” — e. e. cummings

This weekend, the Trump administration’s notice of withdrawal from the Open Skies Treaty is supposed to take effect. I cling to the possibility that the incoming Biden administration will direct the State Department’s lawyers to examine whether there are grounds to reverse this decision, as Team Trump’s exit disregarded Public Law. The Open Skies Treaty’s Consultative Commission would be wise not to act on Trump’s action until the Biden administration reviews it.

I am not a lawyer, nor am I represented by legal counsel. Thus, I invite others who are far better equipped to weigh in on this matter to do so. My sense is that we are in uncharted waters.

Previously, when a President decided to withdraw from a treaty, that was the end of the matter. George W. Bush withdrew from the ABM Treaty, as well as a politically binding agreement — the Agreed Framework with North Korea. Trump withdrew from the Intermediate Nuclear Forces and Open Skies treaties, “unsigned” a third, and exited the Iran nuclear deal, which was in the form of a politically binding agreement.

The situation regarding the Open Skies Treaty appears unique. Given Trump’s penchant for treaty withdrawals, Members of Congress led by Senators Bob Menendez and Deb Fischer decided to insist on Congressional notification and review of any such decision with regard to the Open Skies Treaty. Specifically, Section 1234 of the 2020 National Defense Authorization Act mandated the administration to give Congress a 120-day review period prior to announcing withdraw.

Fischer, the Strategic Forces Subcommittee Chairwoman of the Arms Services Committee, a Republican from Nebraska, said at the time that the legislative language “puts a marker on the table: Open Skies is a treaty we should remain in”

Trump signed the bill in December 2019. His administration then disregarded this provision of Public Law.

Ostensibly, Vladimir Putin is the reason that Trump withdrew from the Open Skies Treaty. Putin violated several of its provisions, all of which were subject to workarounds, and none of which constituted material breaches, unlike his violation of the INF Treaty. The United States unilaterally imposed even greater restrictions on Russian overflights in retaliation to Putin’s maneuvering.

Russian actions were annoying, not a threat to national security. The Open Skies Treaty stuck in Putin’s craw. It reflected the demise of the Soviet Union by allowing the United States to ride-share with states that were part of the former Soviet Union and Warsaw Pact. These cooperative overflights strengthened political and military ties that reflected post-Cold War realities. The Open Skies Treaty also strengthened U.S. ties with NATO. In reality, Trump’s withdrawal was a gift to Putin.

The Open Skies Treaty began as a test of trust. George H.W. Bush, Brent Scowcroft and James Baker were wary of Ronald Reagan’s embrace of Mikhail Gorbachev, and wanted to slow down after the INF Treaty. To test Gorbachev’s bona fides and professed commitment to glasnost, or openness, they latched on to Bob Blackwill’s idea of resurrecting Dwight Eisenhower’s 1955 proposal for Open Skies, which the Kremlin rejected in a heartbeat, as it sanctioned spying on closed Soviet territory. Reconnaissance satellites had not yet been designed and orbited.

Gorbachev passed Bush 41’s test, and the Open Skies Treaty was negotiated in 1992, allowing cooperative overflights with unclassified sensors across the length and breadth of Mother Russia. This was the Golden Age of arms control. Given the Bush administration’s other, high-profile accomplishments, the Open Skies Treaty became background music for the end of the Cold War. It took another decade for ratifications to be forthcoming after treaty implementation arrangements were sorted out to reflect the demise of the Soviet Union.

The Open Skies Treaty was always deeply unappreciated in Washington. It became a bureaucratic orphan, almost from Day One. For agencies with ownership of or access to information garnered by exquisite national technical means, Open Skies wasn’t about intelligence collection and was therefore a bother. For the Pentagon, it was a drain, albeit extremely modest, in resources. One consequence of the wars in Afghanistan and Iraq, as well as anti-terrorism campaigns elsewhere, was that senior military leaders became focused on tactics and lost sight of the kinds of benefits that Open Skies could offer.

Most galling of all, Open Skies flew below the State Department’s radar. Foggy Bottom never invested in Open Skies. It was small change compared to other ways to improve ties with former Warsaw Pact states and Soviet Republics. Then came the Trump administration, which fumbled alliance ties and politico-military partnerships.

The Open Skies Treaty became a casualty of America First thinking and the collapse of U.S. diplomatic tradecraft. Its ride-sharing value went mostly unappreciated and unexploited. After Jim Mattis left the Pentagon, narrow-gauged thinking choked off funding for replacement Open Skies aircraft and new digital sensor suites.

Is it too late for smart geo-political thinking to reverse course in the Biden administration? Perhaps. But no harm and much good can come from having the State Department’s lawyers take another look at the Trump administration’s disregard for Public Law.

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