[Congressional Record Volume 157, Number 13 (Monday, January 31, 2011)]
[Senate]
[Pages S349-S353]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            NEW START TREATY

  Mr. KYL. Mr. President, as some of us predicted, problems are already 
arising from the Senate's ratification of the New START treaty last 
December.

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The Russians just ratified it, and their interpretation of its meaning 
and obligation is different from ours. That is going to cause problems. 
I will also discuss this afternoon the President's fiscal year 2012 
budget in the areas of nuclear modernization and missile defense, both 
of which were closely tied to the Senate's support of the New START 
treaty.
  First, what the Russians are saying about the treaty. The Russian 
State Duma and the Federation Council, which is their counterpart to 
the Senate, last week passed its Federal law on the New START treaty, 
and that is the Russian equivalent to our resolution of ratification. 
That document demonstrates there is a significant divergence of views 
between the two countries on several key provisions and core principles 
of the New START treaty.
  For example, Russian officials continue to assert, despite statements 
from the Obama administration and despite the Senate's legally binding 
positions to the contrary, that various treaty provisions, including in 
the preamble, constrain U.S. military options regarding missile defense 
and conventional prompt global strike. Far from supporting the touted 
``reset'' in its relations, this lack of meeting of the minds is a 
ticking time bomb for disruption of our relations.
  First, regarding missile defense. The Senate unanimously adopted an 
amendment to the resolution of ratification providing that the New 
Start preamble does not impose a legal obligation on the parties. The 
Senate's principal concern and rationale for this provision was the 
language in the preamble linking offensive forces to missile defenses, 
a clear attempt by the Russians to foreclose future qualitative and 
quantitative improvements to U.S. missile defense capabilities. 
Contrary to the U.S. position, Russian officials have recently declared 
that the preamble is an integral part of the treaty and is thus binding 
on the parties. Russian Foreign Minister Sergey Lavrov has stated:

       There are a few problems, one of the main ones being the 
     assertion contained in this [Senate floor] statement that the 
     correlation between strategic offensive and defensive 
     weapons, reflected in the treaty, is not legally binding for 
     the U.S. and Russia because it is stipulated in the preamble. 
     This thesis cannot be defended by lawyers.

  Contradicting President Obama's December 18 letter on missile defense 
to Senators Reid and McConnell and the Senate's resolution of 
ratification, Foreign Minister Lavrov further contends:

       The content of the treaty unequivocally points to the 
     correlation between strategic offensive weapons and missile 
     defense, it is set out in the preamble, whereas the text of 
     the treaty contains an article that allows either party to 
     withdraw in the event of an emergency. We are convinced that 
     the implementation of the full-scale global missile defense 
     by the U.S. will be precisely such an emergency.

  These statements stand in apparent contradiction to the resolution of 
ratification adopted by the Senate.
  On the point concerning the legality of the preamble, which includes 
the unfortunate linkage between offensive arms and missile defense, the 
Russian Federal law on the New START ratification highlights the 
importance that Russia attaches to the preamble and this linkage 
between missile defense and strategic offensive arms, and it introduces 
a new issue: The possibility of ``understandings'' between the parties 
not revealed to the Senate.
  Here is what article 4, paragraph 1 of the Russian law says:

       The provisions of the preamble of the New START treaty 
     shall have indisputable significance for the understanding of 
     the Parties intentions upon its signature, including the 
     content of the terms agreed between them and the 
     understandings without which the New START treaty would not 
     have been concluded. In this connection, they must be 
     considered in toto by the parties in the course of 
     implementing the New START treaty.

  Because of these ``terms'' and ``understandings,'' article 4 goes on 
to state that the Russian Federation shall exercise its right to 
withdraw from the treaty in the case of extraordinary events, including 
the ``deployment by the United States of America, another state, or a 
group of states of a missile defense system capable of significantly 
reducing the effectiveness of the Russian Federation's strategic 
nuclear forces.''
  So now the Russian Parliament is clearly on record that the 
deployment of the U.S. national missile defenses or missile defense 
deployments in conjunction with our NATO allies could be cause for 
Russian withdrawal from the treaty. Since Russia opposed the deployment 
of 10 ground-based interceptors in Poland, it is likely to oppose as 
well the planned deployment of land-based SM-3 missiles in Romania and 
Poland capable of intercepting Iranian ICBMs.
  This provision of the Russian law is fundamentally incompatible with 
the U.S. understanding of the treaty and with current U.S. plans to 
deploy these U.S. defenses in Europe and to deny U.S. national missile 
defenses as the President affirmed to us in his December 18 letter. The 
administration should immediately work to resolve this dispute with the 
Russians. Otherwise, the United States would be willfully perpetrating 
a future collision course between Russia and the United States.
  I am sending a letter to Assistant Secretary of State Rose 
Gottemoeller which raises this issue and asks for clarification of the 
assertion that there were understandings between the negotiators not 
reflected in the public record.
  The President will have to decide whether to exchange the instruments 
of ratification with the Russian Federation with this discrepancy 
extant--and the others that I will briefly touch on. I am not aware of 
a bilateral treaty that is entered into force where such a divergence 
of views existed. Perhaps there is clarification on these matters in 
some secret cable or in another part of the classified negotiating 
record. The administration's stubborn refusal to share these materials 
with the Senate has denied Senators the answer.
  Part of the Corker-Lieberman amendment to the treaty also requires 
the administration to communicate to Russia at the time of the exchange 
of instruments of ratification that it is the policy of the United 
States to continue development and deployment of U.S. missile defense 
systems, including qualitative and quantitative improvements to such 
systems. I urge the administration to consult with the Senate to ensure 
that our intent is accurately conveyed before exchanging this policy 
statement and the instruments of ratification.

  The resolution of ratification also makes clear that missile defense 
will not be on the table in any future treaty. Understanding No. 1 
makes clear that no limits on U.S. missile defenses can be achieved 
through the New START treaty, including the Bilateral Consultative 
Commission it creates, without the advice and consent of the Senate 
which, if I have anything today about it, will not be forthcoming.
  There is also declaration No. 1 which states:

       Further limitations on the missile defense capabilities of 
     the United States are not in the national security interests 
     of the United States, and the LeMieux amendment, which made 
     it the policy of the United States not to include defensive 
     missile systems in any negotiations with Russia on tactical 
     nuclear weapons.

  The administration might have created the impression with Russia that 
the United States would discuss missile defense, whether in the 
Tauscher-Rybakov track of secretive side negotiations--the full extent 
of which the administration is hiding from Congress--or by agreeing to 
the preamble language, or article V, section III, in contravention of 
section 1251 of the fiscal year 2010 Defense authorization bill.
  With regard to Under Secretary Tauscher's side negotiations, I note 
that the Russians know more about the U.S. position and these 
negotiations than the Senate does, which brings to mind again article 4 
of the Russian Federal law on ratification which states that the 
``provisions of the preamble of the New START treaty shall have 
indisputable significance for the understanding of the Parties' 
intentions . . . including the content of the terms agreed between them 
and the understandings without which the New START treaty would not 
have been concluded.''
  What understandings are these? Is this referring to something beyond 
the text of the treaty and the preamble? Unfortunately, the Senate is 
unaware of such understandings because we have been denied access to 
the negotiating record.
  There is the potential here for a major confrontation between the 
Senate and the administration if the administration does not 
immediately

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make a full disclosure to the Senate on these matters. The Senate's 
action in the resolution of ratification should also make clear that it 
will not accept any further linkage between offensive nuclear 
reductions. I am pleased to note a recent product of the Arms Control 
Association, called ``Strategic Missile Defense: A Threat to Future 
Nuclear Arms Reductions,'' that seems to agree with my point. In its 
recent analysis, this group correctly observed that the United States 
will continue to require exempting strategic missile defense from 
treaties.
  Now, while the Arms Control Association seems to believe this is a 
mistake, I am pleased the Senate sent a message so unmistakable that 
even the arms control community comprehended it. The administration 
will have an opportunity to prove whether its statements of support for 
missile defense, including the President's December 18 letter, were 
mere rhetoric or actual policy, beginning when it submits the fiscal 
year 2012 budget request. Initial press reports hint that the Defense 
Department is anticipating yet another reduction in funding for missile 
defense programs over the next 5 years, despite funding plans that are 
already about $4 billion below what was envisioned by the last 
administration for fiscal years 2010 through 2013. This is 
inconceivable given the funding shortfalls increasingly apparent in the 
President's own plans for improving U.S. missile defenses as well as 
four phases of the phased adaptive approach to missile defense in 
Europe. It appears that elements of the administration's phased 
adaptive approach for missile defense are already falling behind, and 
the President's budgets for missile defense have almost guaranteed the 
atrophy and obsolescence of the only national missile defense system we 
now have.
  If these reports are accurate, it would belie the President's 
commitment to missile defense, which was central to Senate support for 
the New START treaty, and suggests the Senate was misled during its 
consideration of the treaty.
  With regard to Conventional Prompt Global Strike--remember, this is 
the concept where U.S. intercontinental range missiles could substitute 
a conventional warhead for a nuclear warhead for prompt delivery to a 
place far away on the globe in a time of emergency--Senators' concerns 
were not limited to missile defense, as I said. We also talked about 
this Prompt Global Strike issue in connection with the START treaty. 
Referencing this capability, Foreign Minister Lavrov told the Russian 
Duma:

       The [U.S.] Senate's resolution claims that the treaty does 
     not apply to new kinds of nonnuclear strategic weapons that 
     could be developed in the future. But this is not true.

  Then he also stated:

       We find unacceptable the unilateral American interpretation 
     of the treaty, according to which future strategic range 
     systems with non-nuclear warheads not meeting the parameters 
     stated in the treaty shall not be regarded as new types of 
     strategic offensive weapons covered by the treaty.

  Likewise, Russian Federal law states in article 2, paragraph 7:

       The question of the applicability of the provisions of the 
     New START treaty to any new kind of strategic-range offensive 
     arms should be resolved within the framework of the Bilateral 
     Consultative Commission . . . prior to the deployment of such 
     new kind of strategic-range offensive arms.

  Hence, Russia is rejecting the U.S. understanding on strategic range 
nonnuclear weapons systems contained in the Senate's resolution of 
ratification, which states:

       . . . nothing in the New START treaty prohibits deployments 
     of strategic-range non-nuclear weapon systems.

  In other words, conventional Prompt Global Strike.
  The President must make this fact plain to both Russia and the Senate 
when he provides the report on the conventional Prompt Global Strike 
systems to the Senate prior to entry into force of the treaty. It mocks 
the very idea of a U.S.-Russian arms control pact if such a 
disagreement--Russia's rejection of a formally adopted U.S. 
understanding--is allowed to stand.
  Let me mention telemetry. In response to Senators who raised concerns 
about the inadequacy of the verification and telemetry provisions in 
New START, the administration essentially said: Not to worry; the 
treaty permits each side to exchange telemetry on up to five tests per 
year. As could have been expected when the administration capitulated 
to Russian demands concerning telemetry, the Russian Federal law now 
prohibits ``providing to the United States of America telemetric 
information about the launches of new types of intercontinental 
ballistic missiles and submarine ballistic missiles.'' That is exactly 
what treaty opponents predicted. As a result, we will know less about 
new Russian systems than under the previous START verification regime.
  At the very least, Russia's action in its federal law to deny the 
United States telemetry on this future missile development will place 
greater burdens on our national technical means to monitor the 
development of new Russian ballistic missiles. The denial of telemetry 
from new delivery systems poses a material risk by aiding Russia's 
potential for breakout from the treaty limits, which is, of course, a 
central concern of the Senate in conditions Nos. 2 and 4 of the 
resolution of ratification.
  Finally, the Russian Foreign Minister seems to have taken aim at the 
Senate's condition that negotiations begin within a year to address the 
disparity in tactical nuclear weapons between Russia and the United 
States. In noting the imbalance in conventional forces, plans to deploy 
weapons in space, and U.S. global missile defense plans, Russian 
Minister Lavrov stated:

       It is possible to hold future negotiations only with due 
     account of all these factors and after the fulfillment of the 
     New START.

  Clearly, Russia is not interested in beginning such negotiations 
anytime soon.
  The Foreign Minister has proven correct those Senators who cautioned 
that after this treaty was ratified, the United States would lose 
whatever leverage it had to address nonstrategic nuclear weapons. 
Assistant Secretary Gottemoeller appears to take seriously the Senate's 
instruction in this regard, even referring to it as her ``marching 
orders.'' I trust she views equally the Senate's ``marching orders'' 
that a subsequent treaty not deal with U.S. missile defenses.
  I am not aware of an example where the United States has ratified a 
bilateral treaty in the face of clear evidence that there is no meeting 
of the minds on key treaty terms. While New START was under Senate 
consideration, administration officials continually spoke about how 
critical the treaty was to ``reset'' relations with Russia and how the 
completed treaty manifestly improved relations between the two 
countries. This can be the case, however, only if the parties actually 
agree on the fundamentals of the treaty's meaning.
  Now let me speak to the anticipated 2012 budget for nuclear 
modernization.
  The Senate, in condition 9 of the resolution, linked its support for 
the New START treaty on a clear commitment to ``ensuring the safety, 
reliability, and performance of its nuclear forces.'' This commitment 
requires full funding to ensure a robust Stockpile Stewardship Program, 
a modernized nuclear weapons production capability, and the development 
of new nuclear delivery systems to replace the aging nuclear triad of 
bombers, submarines, and ICBMs.
  If in a given year funding fails to meet the 10-year plan or required 
levels of resources are greater than the 10-year plan, the President is 
required by condition 9 to submit a report on how the administration 
will remedy the shortfall, the project requiring funds and the level 
that is required, the impact of the shortfall on nuclear readiness, and 
whether it is in the national interest to remain a party to the treaty. 
We must codify the requirement to provide an annual update to section 
1251, requiring the administration to annually provide updated 
assessment of the levels of funding required to maintain and modernize 
the stockpile. And the administration has agreed this is necessary.
  As it currently stands, the administration's proposed 10-year budget 
for nuclear weapons activities, as promised in the update to the 
section 1251 report, takes a critical first step toward nuclear weapon 
sustainment and modernization. It proposes an $85 billion budget for 
weapons activities over 10

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years, from 2011 through 2020, and describes the critical near-term 
requirements of at least $7 billion in 2011 and $7.6 billion in 2012.
  To be successful, the modernization program must have the complete 
backing of the President, the Armed Services Committees and the 
Appropriations Committees, as well as the full House and Senate. These 
budget requests will allow the laboratories and plants responsible for 
nuclear weapons to begin a slow recovery from the neglect that has been 
crippling their ability to address real issues as our current stockpile 
ages. The administration must, however, continue to review and revise 
its estimates for the modernization program and follow through on its 
commitments to obtain this funding from the Congress.
  This modernization program must address the past, the present, and 
the future of our nuclear weapons complex. For example, the Stockpile 
Surveillance Program evaluates the current condition of our aging 
stock. This program has been seriously underfunded in recent years, 
resulting in a decreased confidence in our nuclear weapons. This is not 
my assessment but, rather, the assessment of some of the premier 
authorities on nuclear weapons--the Directors of the nuclear weapons 
laboratories. It is likewise the conclusion of the bipartisan 
Congressional Commission on the U.S. Strategic Posture.
  Likewise, budget requests must allow for the continuation of current 
life extension programs, including the W-76, which is currently in 
production, the B-61, which is rapidly nearing its end of life but 
continues to be required for both strategic and tactical roles, and the 
W-78, which will require a very extensive and challenging life 
extension to correct aging issues and incorporate higher standards for 
safety and security. These three planned programs will likely not be 
completed until the end of the 2020 decade. As it stands, there does 
not appear to be capacity in the complex to insert the long-range 
strike option warhead production in the next decade, which will be 
needed to replace our current W-80 warheads and air-launched cruise 
missiles. As we are the only nuclear weapons state without a nuclear 
weapons production capability, restoring the health of our current 
weapons is critically important.
  Finally, the balanced program must prepare us for the future by 
improving the quality of our facilities, many of which are Cold War- 
and even Manhattan Project-era facilities. Design and engineering 
development of the chemistry and metallurgy replacement nuclear 
facility and the uranium processing facility should be accelerated to 
the extent possible, construction estimates should be properly 
evaluated, and completion of these facilities should be aggressively 
pursued for their completion by 2020. This is another so-called 
marching order for the administration. It is difficult to overstate the 
importance of these facilities to our future national security.
  The opportunity exists to push these programs forward. For example, 
the recent exchange of letters between the Senate appropriations 
leaders and the President shows that the commitment must be bipartisan 
and must include both Congress and the administration. Notably, the 
Senate Appropriations Committee leaders, Senators Inouye and Cochran, 
and the Energy and Water Development Subcommittee leaders, Senators 
Feinstein and Alexander, stated on December 16, 2010, that ``funding 
for nuclear modernization and the National Nuclear Security Agency's 
proposed budgets should be considered defense spending, as it is 
critical to national security.'' And they state that ``this represents 
a long-term commitment by each of us, as modernization of our nuclear 
arsenal will require a sustained effort.''
  The President responded on December 20, 2010, with a commitment to 
support the $85 billion budget, and he also committed to an annual 
update to the section 1251 report. Here is what he said:

       I recognize that nuclear modernization requires investment 
     for the long term, in addition to this one-year budget 
     increase. That is my commitment to Congress.

  It must be our commitment to hold the President to his word and to 
likewise provide our full support for nuclear weapon modernization.
  Finally, on nuclear delivery systems and the President's commitment 
to missile defense, first, we expect to see significant funding for the 
next-generation nuclear ballistic missile submarine and follow-on heavy 
bomber, which the administration now seems to support, although it has 
not yet confirmed that the United States intends the bomber to be 
capable of a nuclear standoff mission, as well as a final decision that 
the follow-on to the air-launched cruise missile will be nuclear 
capable.
  Finally, we expect to see greater clarity with respect to the 
administration's intention to maintain the ICBM leg of the triad after 
the Minuteman III reaches the end of its life.
  I expect the administration's commitment to these delivered platforms 
to become increasingly evident in the Defense Department's 2012 budget 
request as promised in the update to the section 1251 report. 
Modernization of the delivery platforms must parallel the commitment to 
the nuclear weapons. To continue to use Ms. Gottemoeller's formulation, 
this is another ``marching order'' from the Senate for the 
administration.
  The President made clear his commitment to missile defense during the 
course of the Senate's consideration of the New START treaty, as I 
mentioned before. In his December 18 letter to Senators Reid and 
McConnell, he wrote:

       As long as I am President, and as long as Congress provides 
     the necessary funding, the United States will continue to 
     develop and deploy effective missile defenses to protect the 
     United States, our deployed forces, and our allies and 
     partners.

  The President reiterated what the Senate made clear in the resolution 
of ratification--that the New START treaty places no limitations on the 
development and deployment of our missile defense programs--and he 
stated that he ``will take every action available to me to support the 
deployment of all four phases'' of the planned missile defense 
deployments in Europe. The Secretary of Defense also indicated during a 
Senate Armed Services Committee hearing on December 17 that the 
Department was looking at an increase in missile defense funding for 
fiscal year 2012.
  As I said before, however, initial press reports hint that the 
Department of Defense is anticipating a reduction for missile defense 
programs over the next 5 years. Any cut to the missile defense budget 
would be especially shocking in light of President Obama's commitments 
to the Senate. Likewise, it would be absolutely indefensible in view of 
Secretary Gates's recent comment that North Korea was within 5 years of 
being able to strike the United States with an intercontinental 
ballistic missile and that ``with North Korea's continuing development 
of nuclear weapons . . . North Korea is becoming a direct threat to the 
United States.''
  Indeed, the recent discovery of a clandestine enrichment site in 
North Korea raises significant concern about our ability to estimate 
the pace at which that country is developing nuclear and ballistic 
missile capabilities--and should make us think twice as well about our 
estimate of Iranian nuclear and ballistic missile capabilities.

  Also troubling are recent statements by senior military officials, 
including the commander of U.S. forces in the Pacific and the Director 
for Naval Intelligence, suggesting China's anti-ship ballistic 
missiles, designed to target U.S. aircraft carriers, are now nearly 
operational. This new anti-ship ballistic missile, combined with 
Beijing's current and growing arsenal of short and medium-range 
ballistic missiles, threatens to alter the strategic balance in Asia by 
potentially grounding Pacific-based U.S. air forces and sinking U.S. 
ships out to a range of 1,000 nautical miles--not to mention the 
ability to strike U.S. allies and friends in the region.
  The Russian Parliament provided its interpretation of the treaty and 
preamble in its Federal Law on Ratification, and it is clearly at odds 
with the Senate's resolution of ratification in several key respects, 
including missile defense and conventional prompt global strike. To say 
that their interpretation is not legally binding on the United States 
is to miss the point, which is, as many of us said during debate over 
New START, that because

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there is no meeting of the minds on these matters, the potential for 
disputes and increasing tension between the two sides is likely. What 
was to serve as a vehicle for ``reset'' may, in fact, serve to promote 
increasing discord.
  In fact, the first indication of this may have occurred last week, 
when the U.S. and its NATO partners met with Russia to find common 
ground on missile defense cooperation. In advance of that meeting, the 
Russian President threatened ``either we agree to certain principles 
with NATO, or we fail to agree, and then in the future we are forced to 
adopt an entire series of unpleasant decisions concerning the 
deployment of an offensive nuclear missile group.'' If this is the 
language of reset, I wonder what the tone might have been had we not 
agreed to New START? As it turns out, Russia appears to have rejected 
the NATO approach.
  Mr. President, we will watch carefully to ensure the administration 
fulfills its 10-year commitment to nuclear modernization, starting with 
the fiscal year 2012 budget request, and that nuclear reductions called 
for under the New START treaty do not outpace the commitment to 
modernization.
  We must make certain, too, the administration modernizes our national 
missile defense system to stay ahead of increasing threats; provides 
the necessary direction and funding to ensure full, timely deployment 
of missile defense assets in Europe to address the growing Iranian 
threat; and directs the Missile Defense Agency to develop defensive 
countermeasures to the anti-ship ballistic missile capability of China. 
Finally, we must resurrect the Reagan vision of defensive missile 
defense capabilities based in space, which is the only truly effective 
means for protecting the Nation and its deployed forces.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I ask unanimous consent to speak for up 
to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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