Leading Senate Democrats Question Legality of Trump Administration’s Withdrawal from Open Skies Treaty

Leading Senate Democrats Question Legality of Trump Administration’s Withdrawal from Open Skies Treaty

 

WASHINGTON — Senate Foreign Relations Committee Ranking Member Bob Menendez (D-N.J.) was joined by Senate Democratic Leader Chuck Schumer (D-N.Y.)Ranking Member of the Senate Armed Services Committee Jack Reed (D-R.I.) and Vice Chairman of the Senate Select Committee on Intelligence Mark Warner (D-Va.) in sending a strong rebuke to the Trump Administration for the President’s decision to unilaterally withdraw the United States from the Open Skies Treaty.  

The Senators questioned the legitimacy of the Administration’s May 22 letter declaring the President’s intent to withdraw from the treaty, saying it was a violation of the provision in the law mandating the Administration give 120 days of advanced notification to Congress prior to beginning the withdrawal process from the Open Skies Treaty.

“The timing of your decision — less than five months before an election — is also suspect. Beginning the U.S. withdrawal from the Open Skies Treaty, without complying with U.S. domestic law or constitutional practice, is an obvious political maneuver in an attempt to bind a future administration,” wrote the Senators in a letter addressed to Secretary of State Mike Pompeo and Secretary of Defense Mark Esper. “As such, we demand that you immediately discontinue your efforts to initiate the withdrawal process until Congress is provided with the requisite notification under the NDAA, and the Senate has had an opportunity to weigh in on the withdrawal.” 

A key feature of the United States’ international arms control strategy, the Open Skies Treaty allows signatory countries to conduct reconnaissance flights over each other’s territory in order to monitor the deployment of weapons and military forces. The Treaty has provided the United States real-time, comprehensive images of Russian military facilities.  For the last 17 years, the United States has robustly utilized the treaty, overflying Russia nearly three times as often as Russia overflew the United States.  In addition, the Treaty serves as a key confidence-building measure, including flights over Ukraine, which demonstrated U.S. commitment to European security and provided shareable and incontrovertible images of Russian aggression.

“By withdrawing from the Open Skies Treaty, the United States is leaving an agreement our partners have repeatedly communicated they value and believe improves their security,” added the Senators. 

A copy of the letter may be found HERE and below:

Dear Sec. Pompeo and Sec. Esper: 

We are writing to you in response to your May 22 letter declaring the administration’s intent to immediately begin the process for the United States’ withdrawal from the Open Skies Treaty. This decision to unilaterally withdraw from a longstanding multilateral arms control agreement will damage U.S. national security and further impair relations with our allies in Europe. This decision, which was taken without any meaningful consultation with or advance notice to the Senate, also contravenes U.S. law by failing to provide Congress with a notification of the intent to withdraw from the Open Skies Treaty 120 days in advance of beginning the withdrawal process, as required under the National Defense Authorization Act for Fiscal Year 2020 (NDAA).  

The Open Skies Treaty is an important, multilateral agreement that provides the United States and its allies critical information about Russian military forces via flights over Russian territory. The United States relies on the Treaty to attain important, real-time information on Russian military activities, including Russian activities in Ukraine. Furthermore, our Treaty partners view our participation as a gauge for our commitment to ensuring the security of their respective nations. By withdrawing from the Open Skies Treaty, the United States is leaving an agreement our partners have repeatedly communicated they value and believe improves their security.

We are aware that implementation of the Open Skies Treaty has been imperfect, and we remain concerned about these issues, such as Russian limitations on flights over Georgia and Kaliningrad. The issues presented, however, do not negate the positive impact of the Open Skies Treaty, and the United States has in fact taken action to counter Russia’s violations by limiting overflights of the Pacific Fleet in Hawaii and Fort Greely in Alaska. Instead of withdrawing from the treaty the United States should diplomatically engage Russia to resolve these issues as it has done successfully in the past, for example when Russian imposed limitations on flights over Chechnya. 

As you are aware, in 1992, the U.S. Senate provided its advice and consent to the Open Skies Treaty without a single vote in opposition. Since then, a bipartisan Senate has spoken on a number of occasions about the value of the Open Skies Treaty, seeing it as a key element of the Euro-Atlantic security architecture and as an important contributor to a more stable and secure European continent. In fact, this past year, Congress appropriated funding for new surveillance aircraft to replace our aging fleet, which was previously requested by the Department of Defense. 

As a reaffirmation of bipartisan Congressional support for the Open Skies Treaty, Section 1234 of last year’s NDAA expressly mandates that 120 days before the notification of any intent to withdraw is sent to either Treaty depository, the Secretary of State and Secretary of Defense provide to the Foreign Relations and Armed Services Committees of both Chambers a justification for the decision. The letter sent to Congress dated May 22 obviously does not satisfy the law. Moreover, your repeated failure to engage the Senate, much less secure its approval, with regard to treaty withdrawals is completely inconsistent with the constitutional framework of shared responsibility for treaties between the Senate and the executive branch.   

The timing of your decision — less than five months before an election — is also suspect. Beginning the U.S. withdrawal from the Open Skies Treaty, without complying with U.S. domestic law or constitutional practice, is an obvious political maneuver in an attempt to bind a future administration. As such, we demand that you immediately discontinue your efforts to initiate the withdrawal process until Congress is provided with the requisite notification under the NDAA, and the Senate has had an opportunity to weigh in on the withdrawal. 

Sincerely,

 

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