Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the remaining Republican time be equally divided between Senators McCain, Kyl, and Sessions.

Mr. KYL. Mr. President, during one of the last votes, a Member came to me and said: I have not been able to follow this debate. What exactly is the McCain-Barrasso amendment? With all of the to-and-fro--having votes on different subjects, then going back to the START treaty, then going back to a vote on don't ask, don't tell, then finally a vote on the McCain-Barrasso amendment--I thought it would be good to recapitulate a little bit on what exactly the McCain-Barrasso amendment is and why it is important. What the amendment does is it removes language that relates to missile defense from the preamble. This treaty was supposed to be about offensive strategic weapons, not about missile defense. In fact, we were told by an administration spokesman that it wouldn't relate to missile defense, but sure enough, there the words are. Why are they there? They are there because the Russians insisted they be there. Why did they insist they be there? Because for decades the Russians have been fixated on U.S. missile defense, trying to find ways to reduce the effect of our missile defense on Russian strategic capabilities. They tried it at Reykjavik with President Reagan. He said no. They tried it again in the first START treaty. They tried it again in the Moscow Treaty of 2002. And they have tried it again here. The difference between this treaty and the previous times is that the United States always pushed back and said: No, we are going to rely on missile defense. It is the moral thing to do. We are not going to get into quid pro quos with you where we have to reduce our missile defense if you reduce your strategic offensive weapons or some other agreement like that. In the START I treaty, when the Russians said in their signing statement: We find this interrelationship, and the United States should not advance its missile defense capabilities, the United States pushed back strongly in our statement and said no, that would not be a grounds for withdrawal from the treaty and the Russians need to understand that. They never did withdraw even though we did withdraw from the ABM Treaty so we could build missile defenses. Well, once again, they have put it in the preamble this time and then, in their signing statement, made very clear their intent that the interrelationship between the two means that if our missile defenses are ever developed to a point where they consider it qualitatively or quantitatively better than it is currently, then they would have the right to withdraw from the treaty; that that would qualify as one of the exceptional circumstances under article XIV, which is the withdrawal clause of the treaty. Why do they want to do that? Obviously to put pressure on the United States not to develop our missile defenses in a way they don't want. They will threaten to withdraw from the treaty if we begin to do that. Some Presidents--I suspect the existing President, for example--would therefore be very wary of going forward with missile defense plans if that means the Russians would withdraw from the treaty. My colleague Senator Kerry says: Well, the preamble is a meaningless document. It is a throwaway document. It doesn't mean that much. But he also says: However, if we change one comma in the preamble, it will be a treaty-killing amendment. At first, I said: Well, both of those things can't be true. It can't be both meaningless and of ultimate importance, that it would kill the treaty if we changed it. On reflection, I think Senator Kerry actually has it right, partially. To the United States, it is meaningless. Our negotiators didn't care what the Russians put in there. It doesn't mean anything to us, but it means everything to the Russians, and that is why I think Senator Kerry is right. This would be a big problem for the Russians. Why is that so? Because even though we were willing to walk away from that commitment we had always made in the past that there wouldn't be this connection between defense and offense, the Russians got it in here, and it means everything to them because it creates the predicate for their withdrawal from the treaty, and that is what they are trying to establish. I will close this point by quoting from Dr. Condoleezza Rice, who wrote an op-ed in the Wall Street Journal in which she said we needed to do something about this in our ratification process. She said there are legitimate concerns that must be addressed in the ratification process. I am quoting now: The Senate must make absolutely clear that in ratifying this treaty, the U.S. is not reestablishing the Cold War link between offensive forces and missile defenses. New START's preamble is worrying in this regard as it recognizes the interrelationship between the two. What this language from Senators Barrasso and McCain does is simply remove that language from the preamble, thereby removing the thorn, removing the contention, the potential and I would say almost certain conflict that is due to arise between our two countries when the time comes that we do build a missile defense that the Russians don't want. They say: We are going to withdraw from the treaty. We say: You can't do that; that is not an extraordinary circumstance. They say: Yes it is. We identified it as such at the time we signed the treaty, and we are going to leave the treaty. And then the U.S. President has a dilemma: Do we pull back on our missile defenses or allow the Russians to withdraw from the treaty and all that will portend? That is why this is important. The amendment cures the problem by simply removing that language from the preamble. In the remaining time, I wish to briefly respond to four points the President made in his weekly address today relating generally to the same subject. One of the first points he made is he talked about the number of nuclear weapons--about 25,000 on each side--and the decades that have ensued since the Cold War. Those numbers have come down dramatically, and he said that progress would not have been possible without strategic arms control treaties. Yes, it would have. It was happening anyway. Both sides were willing to draw both of their delivery vehicles and warheads down because they couldn't afford to keep them. In fact, after the end of the Cold War, the United States, under President Bush, said: We are reducing ours, and Russia, you can do whatever you want to do. We knew they couldn't afford to keep theirs any more than we could keep ours, and they weren't reducing theirs. The Russians came to us and said: Gee, we need a treaty. We said: Why? We don't care how many you have. We are reducing ours. Eventually, we said: OK. If you want a treaty, fine. It was a three-page treaty, but it had no connections with missile defenses or anything the Russians wanted. The point is, it didn't require a treaty for us to bring those levels down. How about the delivery vehicles? This treaty actually fixes the number of delivery vehicles above where the Russians are right now. They could actually build up to the level of about 140, as I recall, to get up to the level of 700. The point is, both countries are reducing the levels to the point that we need, not because of an arms control treaty but because it is in our national interests to do so. Secondly, the President said that without this treaty, we will risk turning back the progress we have made in our relationship with Russia. I will just repeat what I have said before. Secretary Kissinger and others who have spoken to this point have always warned: Don't predicate the support for a treaty on improving your relationship with someone. The treaty should relate to reducing arms or whatever the subject of the treaty is. It should not be based on anything other than that or you get into a morass of always trying to please the other side and risking that they will withdraw from the treaty. Third, the President said that it is about the safety and security of the United States of America. I have yet for anybody to tell me what threat we are reducing by agreeing with the Russians that both of us are going to reduce our delivery vehicles and warheads. Actually, the Russians don't have to reduce theirs; they could actually build up under the treaty. I don't think we see any big threat there. Finally, the President said that every minute we drag our feet is a minute we have no inspectors on the ground at those Russian nuclear sites. We just talked about the fact that we have this reset relationship with the Russians, and we need to continue these good relationships, but we can't trust them, so we have to get our folks on the ground verifying what is going on right now. As I pointed out before, the administration created this problem on its own. We could have had a bridging agreement. We could have simply extended the verification provisions of the previous START treaty, but the Russians didn't want to do that, we are told. Fine, they didn't want to do that. That doesn't mean we had to agree that we will abide by their wishes when it comes to verification. My colleague says: Well, you can't get them to do something, so we signed the treaty the way the Russians wanted in this regard, and we just have to live with that. The administration might have to live with that, but the Senate is not a rubberstamp, and it seems to me the Senate has a right to say: You let the verification procedures lapse; you didn't have to do that. Senator Lugar had a bill that related to the extension of the legal regime whereby both sides would be able to continue to have presence in the other country. We knew that was a problem at the time. For some reason, the administration didn't pursue it--I suppose because the Russians said no, but that doesn't mean the U.S. Senate has to say: OK, the Russians just say no, and I guess we have to go along with that. The point here is that I don't think any of the arguments President Obama has made require that we ratify this treaty this week. I would urge my colleagues to seriously consider what Dr. Condoleezza Rice has said, what Senator McCain and others have said here about the necessity of cleaning up this preamble so that we don't reestablish the link with missile defense and inhibit U.S. ability to proceed with missile defense plans in the future.

Mr. KYL. Mr. President, to say the treaty doesn't constrain the United States misses the point of the argument we have been trying to make over the course of the last day and a half. What the Russians have done is establish a legal pretext for withdrawal from the treaty. They have been very clever about it, and up to the time we had been told the President had sent us a letter, there was no pushback from the United States. I haven't seen this letter, so it is a little hard to comment on it. It has been given to us 15 minutes before the vote is supposed to start. It hasn't been shared with us. We have no idea what all it says. We have Senator Kerry's quotation of certain parts of it. It is obviously a last-ditch effort to try to win votes or preclude an amendment from passing. It shows the administration is scrambling and making it up as it goes along. That is not the way to deal with a serious subject such as this. Does the letter commit to the GBI--or the ground-based missile-- backup for the phased adaptive approach, as was originally announced? Well, I don't know whether it says that. Does it repudiate the signing statement of the United States Department of State issued by Secretary Tauscher, which of course conflicts with the letter and is the official position of the U.S. Government? Does it conflict with the briefing in Lisbon, where the phased adaptive approach was discussed, and revealed deployment of the first three phases but the fourth phase only being available? When will the deployment occur? The letter, apparently, says we will have effective defenses-- whatever that means. What does that mean? When would those effective defenses be deployed? Iran intelligence tells us they will have an ICBM by 2015--an ICBM that would require something like the GBI to intercept. But we are told the GBI is--well, A, we are not told whether the GBI is a contingent backup plan; and, B, we are not told whether it will be ready before 2017, which I find strange. Because I think we already have 24 GBIs in Alaska and California, and I don't know why we can't build some more to deploy in Europe. So I don't know what to make of this letter. Obviously, it comes at the last minute and hasn't been sent to us, and I don't see how we can base a vote on such a letter.

Mr. KYL

Mr. KYL. Mr. President, when the Senator says that happens automatically, if cloture is filed and invoked, then both amendments to the treaty, the preamble, and the resolution of ratification are cut off at that point, correct?

Mr. KYL. In other words, cloture cuts off both the resolution of ratification amendments as well as treaty and preamble amendments.

Mr. KYL

Mr. KYL. Madam President, yes, I have been consulting with our Members on the DREAM Act, on the Defense bill, as the Senator mentioned, on the tax legislation, on what we then called the Omnibus appropriations bill, which----

Mr. KYL. Madam President, yes. The majority leader--well, it was not defeated. The majority leader pulled it down in order to reach an agreement with the Republican side on a much slimmed down version, a continuing resolution.

Mr. KYL. Yes, that took a lot of my time, working on the Omnibus appropriations bill. As the Senator knows, when, 2 days ago, we began debate on the START treaty, there was an assumption that I would speak immediately--on the first evening, I said, actually, let's get some business done here first. We need to do the funding of the government. So my first comments were on the Omnibus appropriations bill.

Mr. KYL. Madam President, no. The House of Representatives, I understand, has gone home after adopting a very short-term, I think a 3-day continuing resolution to fund the government since its funding terminates at midnight tomorrow night. We will have to then take up either that--well, we will probably take that up, adopt that, I assume, I hope, by unanimous consent, and then work out the maybe 3-month continuing resolution that will have to be passed by both bodies before we go home.

Mr. KYL. Mr. President, I would say to my colleague, maybe 10 minutes is all. I wish to respond to four particular points that have been made here.

Mr. KYL. Mr. President, I very strongly support the amendment offered by my colleagues, Senators McCain and Barrasso. The primary point here is the preamble has created a great deal of confusion and it will create discord between the two parties here--between the Russian Federation and the U.S. Government. There is a built-in conflict, a big problem. It is a tumor here, and it is going to grow and eventually create a conflict between our two countries that frankly isn't necessary, and that is the purpose for removing this language from the preamble that creates this problem in the first place, that reestablishes the linkage between strategic offensive weapons--which are the subject of the treaty--and missile defenses, which are explicitly not the subject of the treaty. My colleague Senator McCain pointed out that Secretary Rice had written an op-ed where she said one of the most concerning things-- worrisome, I think, was her word--about this treaty is that reestablishment of the linkage which the Bush administration had worked very hard to eliminate. In the Moscow Treaty of 2002 they had eliminated it, making it clear--even though the Russians wanted preamble language or treaty language connecting the two--they were not going to be connected by the United States. We intended to keep our missile defense plans totally separate and apart from any strategic offensive treaty. The proponents here of this treaty and its language have made some arguments which I think I should respond to briefly. They will probably dwell on some of these again, but I have heard these arguments so far. One that you hear over and over is that the treaty language is not binding. The simple response to that is: Fine, if it is not binding, then what is the big deal about amending it or simply eliminating this particular provision? Because it is pernicious, it is going to create a lot of problems in the future in terms of disagreements between the two countries--disagreements which are not necessary but which could escalate into a real problem in the relationship between the two countries. So if it is not binding, clearly there shouldn't be a big deal about amending the preamble. Second, I did hear my colleague from Massachusetts the other day say: Well, these preambles are not that big a deal. They are mostly for domestic consumption. That may be true, but that is a two-way street. We have some domestic consumption here in the United States, too. The American people want the United States to be unconstrained in the development of our missile defenses, and we want to have a little comfort in this treaty that we are not going to be so constrained. I am well aware of the language in the resolution of ratification, which is simply a statement that says the treaty doesn't limit U.S. missile defenses. That is true, as far as it goes. But, of course, it begs the question of how the Russians interpret the preamble. And they interpret it--as I said 2 days ago, or yesterday, I guess--as a legally binding authority for the Russian Federation to leave the treaty based on its interpretation of extraordinary circumstances, allowing it under article XIV--the withdrawal clause--to withdraw from the treaty if the United States were to deploy missile defenses that qualitatively or quantitatively improve our condition vis-a-vis Russia, which clearly is going to happen if the United States pursues the plans that Secretary Gates has announced. Of course, the real question is: In view of the Russian objections, will we in fact do that? And that is the pernicious aspect of this preamble. I am afraid, because the Russians have made such a big deal out of this, the Obama administration is backing away from what were announced as our plans for missile developments. Third, I would point out the fact that this is a problem created by the administration. The Senate gave its advice in the Defense bill last year when we explicitly said don't include any limitations on missile defense. We also added prompt conventional global strike. So this language was negotiated notwithstanding a warning by the Senate that limitations on missile defense could create a problem in our consent to the treaty. Fourth, the language, as I said, is inconsistent with--that is to say the language in the preamble is inconsistent with announced plans for U.S. missile defense. My colleague Senator Kerry quoted administration officials as saying, well, we briefed the Russians thoroughly on this. No doubt that is true. It also appears to be true the United States has begun to modify our announced intentions with regard to deployment of missile defense. My colleague Senator Inhofe pointed out that in place of the ground- based interceptors that the Bush administration had planned to deploy in Poland, along with associated radars in the Czech Republic, to complement the ground-based interceptors already in California and Alaska, primarily dealing with the threat coming from east Asia, the administration announced that it would substitute a phased array--or, rather, a phased adaptive approach, which included, at least in its fourth phase, the potential for intercepting ICBMs that could come from Iran to the United States, but also, of course, anywhere else, including Russia. That would clearly be a qualitative improvement of missile defenses vis-a-vis Russia, which under their interpretation of the preamble would allow them to withdraw from the treaty. We say no, it wouldn't. Oh no, wait, that was the START I treaty where we said no, it wouldn't. In the START I treaty, the unilateral statement of the United States rejected what the then-Soviets said. The language is almost the same. The Soviets said: We don't want you to build missile defenses, and if you do, that is a ground for withdrawal from the treaty. At that point, the United States said: No, it is not. Did we say that this time? No, not a word. As my colleague Senator McCain said, the United States was silent; instead, in effect saying in our unilateral signing statement: You don't have anything to worry about because we are only going to develop missile defenses good against limited or regional threats. In other words, neither the ground-based interceptor we were going to deploy but President Obama pulled back from Europe nor the phased adaptive approach, which, in its final phase, could be effective against a Russian ICBM--apparently neither of those is going to be deployed. The administration did not make an announcement to that effect, but they did appear to confirm it when they briefed, in Lisbon a couple of weeks ago, the NATO allies and Russia that the first three phases of the phased adaptive approach would be deployed, but the magic language wasn't used on the fourth. They just said it would be available. Which is it? Are we, in fact, pulling our punches already before the treaty is even ratified because the Russians have objected to it? Isn't this exactly what Secretary Rice warned us about, saying she was worried that we had to, in this treaty, do something about the fact that the Russians had reconnected defense with offense? That is exactly what the McCain and Barrasso amendment would do. It takes out this language which raises the question, the confusing interrelationship language between missile defense and missile offense, and it strikes the language that says that current U.S. missile defense is not a problem--of course laying open the whole question of whether what we do in the future will be a problem. That is what the McCain- Barrasso amendment would do. (Mr. WARNER assumed the Chair)

Mr. KYL. I will be happy to yield to my colleague.

Mr. KYL. Mr. President, I object. What we were trying to do is simply indicate an order so people would know this evening roughly when they would be permitted to speak, what the order would be, how late we would go, and so on. It is my understanding that we will not be on the treaty tomorrow but, rather, that we will be on two other matters the leader has filed cloture on and that we would have some debate preceding the two cloture votes. Therefore, we would not be on the treaty tomorrow. When we go back on the treaty, obviously there may be something that needs to be set on the amendment before we vote.

Mr. KYL. I cannot agree with that. I simply don't know who else might want to speak to it. With the amount of people speaking to this tonight and the fact that presumably we will come back on this Sunday or Monday, I would not anticipate personally--though it is not my amendment--that there would be a tremendous amount of debate left and it would not be our intention to hold off a vote; however, there may be people who want to speak to it, and I may want to have something. Mr. President, might I also say that Senator Thune would like to have 15 minutes tonight. I think that is the best way. Then perhaps we can talk offline.

Mr. KYL. Madam President, the House finally concluded its work on the tax extensions and related activities last night. I think ours was a night or two prior to that.

Mr. KYL. Well, I am not going to take credit for that because I would get a lot of----

Mr. KYL. Madam President, I will totally deny that I had anything to do with it. But I was involved in the negotiations for the Republican Senate side.

Mr. KYL. Madam President, yes.

Mr. KYL. Madam President, yes, that is exactly correct. And we were working on that at the same time--well, actually that has been going on now for about 10 or 12 days.

Mr. KYL. Madam President, I have forgotten. I would have to tell my colleague, I think it is three. I am not sure. We are now on the sixth version of the DREAM Act.

Mr. KYL. Madam President, I think that is the schedule, that we would have a cloture vote on the DREAM Act tomorrow morning.

Mr. KYL. Would my colleague yield just for one quick question?

Mr. KYL. You said, then, the treaty would have to go back to the Russians. Of course, the Russian Duma is poised to act on this treaty after the Senate does so. The treaty is going to go to the Russians, and unless my colleague is suggesting the Senate has no right to change anything in it, of course, if it is modified, it goes to the Duma and then the Duma decides do they want to accept that change or not.

Mr. KYL. Would you yield for one quick question?

Mr. KYL. If it is not binding, then why does my colleague assume the Duma would have such a hard time accepting the modest change we are proposing?