Published by The Lawfare Institute
in Cooperation With
Editor’s Note: Trump's destruction of U.S. alliances and coddling of Moscow is alarming enough, but even more distressing is the apparent complacency of many powerful Republicans. This may be changing. Molly McKew of the New Media Frontier assesses legislation in the works that would constrain the president on NATO and Russia. If passed, it would mark a major step toward Congress reasserting itself as a foreign policy player.
Last week, amidst a flood of other news, a bill to ensure that President Trump cannot unilaterally withdraw the United States from NATO without first seeking congressional consent was quietly introduced in the Senate. It was followed this week by a new sanctions bill that acknowledges Russian behavior remains unchanged over the past several years: It has maintained its claim to Crimea and intervention in eastern Ukraine, continued its campaign of civilian slaughter in Syria, and escalated its ongoing cyber and information wars against America. The proposed legislation makes the case that this requires further deterrence by raising the costs for the Kremlin. The legal mechanisms outlined by the bills are significant, but what they represent overall is far more so: that the legislative branch is finally taking seriously its Article 1 constitutional powers to act as a check on this president’s more destructive foreign policy impulses.
On his recent European tour, Trump threatened that the United States would “go its own way” if NATO allies didn’t pony up additional defense spending, and he rolled a rhetorical grenade into the United Kingdom’s Brexit discussions before standing next to Vladimir Putin and attacking the United States in order to avoid criticizing Russia. Instead of calming things down, the president then gave several interviews expressing doubt about the purpose of collective defense and its import to U.S. security. The series of public and private events set off a firestorm in Washington, with members of the House and Senate condemning an escalating pattern of behavior from a president becoming more assertive of his own personal policy views. The Cabinet scrambled to clean up the mess with allies and to reassure the Hill, arguing that the president’s outrageous statements were simultaneously not really reflective of his policy but also, somehow, delivering tremendous results anyway.
Outrage about the president’s Helsinki performance cascaded onward, fueled by the Kremlin’s insinuations that closed-door deals had been made on defense, Ukraine, Syria and more. Finally, the Senate Foreign Relations Committee summoned Secretary of State Mike Pompeo—designated cleaner-up-in-chief—to debrief members on what he had learned about the meeting with Putin. Pompeo, sitting before his oversight committee, didn’t provide much clarity, instead insisting that there was no space between the president and the Cabinet on policy—even while signaling that foreign policy is now completely at the whim of the president.
The hearing was, by design, a public spectacle, and all the actors played their parts. Chairman Bob Corker (R-Tenn.) and ranking Democrat Bob Menendez (N.J.) made it clear that Pompeo should avail himself of the opportunity to reassure the public and our allies, provide clarity on the threats that face this country, and guarantee that there is actually some sort of policy process that doesn’t, in fact, originate with a tweet issued during morning toilette. Pompeo stonewalled and dismissed, evading questions and smirking. The senators questioning him grew more and more impatient as the hours went on. The secretary of state offered a renewed pledge of loyalty to the president instead of reassurance. In the process, he likely missed some of the most important things that happened during the hearing.
Several senators, including Tim Kaine (D-Va.) and Jeanne Shaheen (D-N.H.), pressed Pompeo on why there had been no public response to a Russian Ministry of Defense statement denouncing Gen. Joseph Votel, commander of U.S. Central Command, for expressing caution in cooperating with Russia in Syria. Kaine then got Pompeo to grudgingly acknowledge that the National Defense Authorization Act (NDAA) for fiscal 2019 includes language prohibiting direct military-military cooperation with Russia unless the Pentagon grants a waiver—which it has not.
Referencing these few lines out of the hundreds of pages of the NDAA, which the Senate approved this week, was no accident. Kaine did not toss that out because he, like Votel, understands that working with Russia in Syria would put U.S. troops at risk, both physically and in terms of complicity in ongoing Russian and Assad-regime war crimes. He mentioned it because it is an example of legislative constraint on the president’s foreign policy—and in the wake of Singapore and Helsinki, the administration should probably expect that there will be more congressional checks on its policies.
In fact, the day after the Pompeo hearing, Kaine introduced a joint resolution in the Foreign Relations Committee that would require Senate approval for any decision to withdraw from NATO and ensure that there are legal mechanisms in place should the president decide to bypass the advise-and-consent process.
The Constitution is clear that Senate approval is needed for treaty ratification, but the process for terminating treaties is not addressed. At various points in history, depending on whether there is a more or less assertive legislative branch, approval for treaty termination has been sought, or not. Kaine’s resolution makes it clear that Congress vehemently opposes NATO withdrawal; that withdrawal would require Senate approval, which the president would be unlikely to get; and, most importantly, establishes a judicial mechanism to sue if the president attempts to proceed without Senate consent.
“More than 1,100 soldiers from NATO countries have been killed in Afghanistan,” Kaine said about the resolution. He also noted that the only time the Article 5 collective-defense protocol has been used was in response to the 9/11 terrorist attacks, and at the request of the United States. “The shared threats we and our partners face … make NATO more important than ever.”
The United States built NATO to ensure that a Europe whole, free and at peace could be achievable. In the process, it put the steel in the transatlantic partnership that would become the basis of American prosperity and security after World War II. In picking Europe up from the ashes of war and trying to ensure that it would never again unravel, the United States ended up building a market for our goods, a peer for our ambitions and a partner for our security. From the west side of the Atlantic, it is easy to lose sight of how much, exactly, we benefit from this alliance—and how vital the collective-security protocol is to ensuring the economic and other aspects of these partnerships. “Any effort to abandon [NATO] would be a monumental mistake,” Sen. Cory Gardner (R-Colo.) offered.
As drafted, Kaine’s bill, which is co-sponsored by Gardner, John McCain (R-Ariz.) and Jack Reed (D-R.I.), is meant to end the hand-wringing over the president’s vacillation and actually deter him from believing he can pursue NATO withdrawal. It is a layered response that leaves little wiggle room. It puts teeth into earlier near-unanimous House and Senate statements of support for NATO, and it adds substance to gestures of reassurance by showing allies that the United States is more than the president and that it still has both feet in the alliance.
Such certainty is vital to NATO as a consensus organization. Uncertainty gnaws at unity and slows decision-making, spiraling downward toward a point where the failure to respond rapidly to a threat against any one of the allies becomes more likely. It is no accident that three of the four originating co-sponsors of Kaine’s legislation are on the Armed Services Committee.
It is also no accident that both the NATO bill and a subsequent Russia sanctions package are co-sponsored by Republicans McCain—a stalwart on defense and foreign policy—and Gardner—who, as chairman of the National Republican Senate Committee, is seen as a future leader of the party on these issues. Together, they bridge the generations in the Senate, and their unity lays down a marker that Republican foreign policy, when it comes to the defense of U.S. values, remains unchanged. This may seem symbolic, but it is highly significant. One put aside partisan politics and the other severe illness to ensure that their names were on these bills.
The Graham-Menendez sanctions bill—on which Lindsey Graham (R-S.C.) and Menendez are joined by Gardner, McCain, Ben Cardin (D-Md.) and Shaheen are originating co-sponsors—not only establishes penalties for malign Russian activities and prohibitions on working with Russian-state enterprises but also creates new structures in the U.S. government to better monitor and respond to hybrid threats. This includes evaluating whether declaring Russia a state sponsor of terror (for which Gardner has previously pushed) would provide additional legal measures to leverage against the Kremlin. The sanctions bill also includes a provision to prevent NATO withdrawal that draws strongly from the Kaine bill (though there is an argument to be made for keeping this separate from, and potentially more durable than, a sanctions bill), and it requires a report from the director of national intelligence on Putin’s wealth and assets—a gesture that will make Putin quite unhappy.
“Our goal is to change the status quo and impose crushing sanctions and other measures against Putin’s Russia until he ceases and desists meddling in the U.S. electoral process, halts cyberattacks on U.S. infrastructure, removes Russia from Ukraine, and ceases efforts to create chaos in Syria,” wrote Graham. “The sanctions and other measures contained in this bill are the most hard-hitting ever imposed—and a direct result of Putin’s continued desire to undermine American democracy.”
The legislation is comprehensive, pulling together pieces of previous drafts and effectively gutting the notion—which the Kremlin in particular likes to promote—that there is nothing to be done about the Kremlin’s bad behavior or against its full-spectrum warfare. This sanctions package shows that a wide range of things can, and should, be done to raise the cost for the Kremlin and take away its open battlefield for operations.
It also limits the president’s ability to rapidly change course on the abandonment of allies or cooperation with Putin. The White House may continue its will-he-or-won’t-he behavior with the Kremlin, but the core of bipartisan foreign policy leadership in the Senate seems to have had enough on some of the most critical issues for U.S. security.
After a short break in August, the Senate enters an 11-week work period—a thinly veiled effort by Majority Leader Mitch McConnell (Ky.) to limit Democrats’ campaigning in hard-fought midterm races. But this Washington detention creates a lot of time to hold hearings and draft legislation. It is also a lot of time to think about what landscape the 115th Congress wants to leave for the 116th. The new Congress will probably have a huge freshman class and brewing leadership battles, which are likely to compound the uncertainty of executive chaos with the uncertainty of legislative neophytes.
For all of Pompeo’s assurances that U.S. policy remains unchanged, in just the few days since that hearing, signs of shifts have already appeared vis-a-vis Russia. The Treasury Department is considering lifting sanctions on one of Putin’s closest henchmen, the United States seems to have left Russia in control of the future of Syria, and the U.S. government has sided with Russia against Ukraine in a national security case before the World Trade Organization.
The concern has long been that two separate foreign policies are being conducted—one by the president and one by everyone else in the federal government. But these lines in the NDAA and the bills moving through the Senate show concrete efforts to narrow that gap.
Maybe lawmakers exhausted by the frenzied churn of this administration and the throngs of reporters pursuing them through Capitol halls seeking denunciations of tweets and off-script comments have learned that the best way to avoid the dash for the members-only elevators is to do their job: starting by exercising Congress's constitutional authority to close off some of the most outlandish possibilities on foreign policy—rendering the madness of tweets actually, and not just rhetorically, irrelevant.