Lawfare Daily: Unpacking Security Guarantees for Ukraine

[Intro]

Eric Ciaramella: The parameters of what we're talking about here are about provision of security assistance, potentially some small troop contingents that would be doing training or something like that, but not, we're not talking about, you know, a, a treaty level pledge by the United States or these European countries to actually intervene and fight on Ukraine's behalf.

Anastasiia Lapatina: It's the Lawfare Podcast. I'm Anastasiia Lapatina, Ukraine Fellow at Lawfare with Eric Ciaramella, a senior fellow at the Carnegie Endowment for International Peace.

Eric Ciaramella: Can you create a NATO like arrangement for Ukraine that isn't NATO and something like Article Five that isn't Article Five? And to me it's completely nonsensical. Because NATO and Article Five are unique and specific and have taken 70 plus years of constant policy work to maintain the credibility of the deterrence that the alliance has.

Anastasiia Lapatina: Eric and I spoke about the history of American security commitments to allies abroad, what made those commitments credible, and what lessons Ukraine can learn as it's pushing for its own security guarantee from the West.

[Main Podcast]

To do all of that, we need to go back a little bit in history and unpack some of the various security arrangements that the U.S. had with its allies before. But before all that, broadly, I think we can split this conversation in like the three types of security commitments that exist.

So you could have them through multilateral alliances, which is NATO, that's sort of the gold standard. You can have it through bilateral alliances, which as you'll explain, is something that we see in Asia where the U.S. just has a treaty with an ally.

And then there are several very interesting cases of non-treaty assurances where there is not a treaty, not a mutual defense clause, but there is still a certain level of understanding that the U.S. is committed to its ally’s security. And I wanna begin with the bilateral alliance one. Which brings us to the onset of the Cold War, which is when we can find some of the earliest examples of this and the American bilateral security commitments to a number of countries, particularly in Asia.

So can you just take us back a little bit into that historical context? When World War II just ended and U.S. president at the time, Truman is deciding to expand American security commitments abroad. So what was the American thinking at the time?

Eric Ciaramella: Sure. So at the onset of the Cold War, there was a policy of containment of the spread of communist influence, both the spread of Soviet influence in Europe, and then the spread of Soviet and Chinese influence in Asia. And in the early fifties, you had the creation of a several different alliance structures, which all came about for different reasons.

So the U.S. Japan Mutual Defense Treaty, which was first signed in 1951, was actually a very asymmetric treaty that really favored U.S. interest because you know, it came in the wake of the surrender of the Japanese regime, the American occupation of Japan, and it was all about granting the American military access to Japanese infrastructure and the ability to deploy from Japan to counter communist threats in other parts of Asia.

There were even provisions in that treaty that would allow the United States, the ability to interfere in Japanese domestic politics. So it was actually a very uneven treaty and it was pretty unpopular, so much so that as the fifties went on, there was a move by the Japanese government to re, renegotiate the treaty. And so a new version, which is the version that's enforced today, was signed in 1960.

It was still quite unpopular. And there were a huge amount of popular protests in Japan against it, but it took away this provision about U.S. interference in Japanese politics, and it made the treaty more mutual so that Japan would have to consent to any kind of U.S. deployments, and Japan could expect protection from the United States if it were attacked.

But again, that treaty came about because of American occupation and transitioning from the occupation regime where again, the United States was in control of all government functions in Japan to something that was the beginning of an alliance, but still a very unequal one that, that preference U.S. interests.

Then you have the U.S./Korea, South Korea treaty. Which was signed a couple of months after the Korean armistice. And that's a pretty unique case because you know, the American military was obviously a main belligerent in the Korean War, lost more than 30,000 troops in battle and still had several tens of thousands of troops stationed in South Korea at the time.

And so basically with that mutual defense treaty did was it codified something that already existed on the ground, which was that there already was a form of a U.S. security guarantee in Korea. There were already thousands of troops stationed there, you know that were aiming to deter another North Korean attack on the South. And so we can talk, obviously there's been a lot of discussion about the Korean model for Ukraine, but it's important for listeners to recognize that this came about in a completely different circumstance where the United States was already involved in the war.

Listeners may be less familiar with the fact that we did have a mutual defense treaty with Taiwan, which was also signed around the same time in the early fifties, part of containment policy, and that was in the era when we only recognized Taiwan as a legitimate Chinese government. And that treaty was enforced for, you know, 20 something years, and it was President Jimmy Carter, who in 1978 decided to withdraw from the treaty in favor of you know, as part of recognizing Beijing and, and mainland China as the legitimate Chinese government. And so this was sort of a condition of that transition. We'll talk about Taiwan later, but that prompted Congress to introduce the Taiwan Relations Act. But again, we had, we had this treaty arrangement with, with the Taiwanese for 20 something years.

And then the final one I'd mentioned, and I know we're gonna talk next about multilateral, but you know, not all of these treaties in Asia and the Asia Pacific region survived. There was the Southeast Asian Treaty Organization, which was supposed to be an Asian version of NATO. No one talks about it now cause it was a total failure. But again, it went through the Senate process, advice and consent. Two thirds of the Senate, it was a treaty. It was supposed to look like NATO, and it utterly failed.

And we can talk about why NATO has been so successful. But again, it just goes to show that even when you have security guarantees in the form of treaties and the intention is to replicate something that was successful, they aren't always successful.

Anastasiia Lapatina: So comparing this to the Ukrainian context, you already mentioned that the context are extremely different of course, but in the cases of both Japan and South Korea, the U.S. had a lot of genuine national security interests at stake in the region.

So it was not only very much willing, but in the case of Japan, sort of imposing its vision of how things should be done. And so in general, it was very much eager to extend these security commitments, whereas in the case of Ukraine, the Ukrainians are pretty much begging the U.S. to get involved and you know, we know how that conversation is going. It's very unclear what the U.S. is gonna do, but in general, there is a much less of an understanding that the European theater is, is a priority for the U.S. right now. Is, is that right?

Eric Ciaramella: That's right. But again, this was a pretty unique moment in American history where, you know, we had just endured all the brutality of World War II and you know, the successive administrations were very concerned about dealing with the Soviet Union and the threat of communism around the world. And so it was a completely different policymaking framework in the sense of, you know, whether or not to extend U.S. commitments abroad.

We had already been so committed, I mean, again, we're sending millions of troops abroad to fight, you know, Hitler and the then the Communist in Korea and so on. So the idea that we would make these additional commitments in treaty form and leave a stay behind force or something like that, it wasn't a huge deal. It was, like I said, codifying something that was already roughly in place at that moment, and so it wasn't a huge logical leap t get into these security arrangements.

Now, you know, at the present moment, obviously we're not belligerent in the war. We've been supporting Ukraine, you know, very robustly in terms of the provision of weapons and training and intelligence and all of that. But the red line has been getting involved directly in the war, and so we are in a completely different environment when we compare the two.

Anastasiia Lapatina: What made those security commitments credible in the cases of Korea and Japan? Because it wasn't just a treaty, as you've said, the U.S. was directly involved. Can you talk a bit more about just how much of an involvement there was to beg the commitment?

Eric Ciaramella: Yeah, I mean, it was, it was about basing, it was about stationing of troops, pretty, you know, heavy contingent. It was about, you know, in the case of Korea, for example, you know, it's been decades of joint planning, military exercises, contingency planning.

I mean, it's very clear that various Korean scenarios, you know, are a huge part of how INDOPACOM is thinking about what could transpire in the future. And so it's not just a paper commitment. We have the forces on the ground and we think all the time and work together with the South Korean military about what to do in a time of crisis.

And so there is an understanding. It's not always perfect. Sometimes South, South Korean governments have worried about our commitment. I mean, if you remember the first Trump administration, you know, the president was considering withdrawing some troops from South Korea as a way to gain leverage in trade talks. And so that sort of dented the, you know, credibility maybe is a strong word, but dented South Korean confidence in the, you know, stability of the alliance.

But again, to, to go from a paper document. The U.S./South Korea Treaty or the U.S./Japan Treaty, I mean, it could fit on one page. It's very vague. It's very high level language. If you only had that piece of paper, it'd be worth approximately the piece of paper, but it's what's gone behind it and into it over, you know, decades and decades of building these bilateral relationships, and in particular in these two cases, having American forces stationed on the ground.

Anastasiia Lapatina: The U.S. has even sent nukes to both countries, right? And used the threat of nuclear weapons when the two countries were under certain verbal attacks from their enemies, right?

So that's again, maybe for the moment it wasn't that big of a deal 'cause everything was about the nuclear arms race, right? But now thinking about that, like that's sort of impossible to imagine in any sort of Ukrainian scenario.

Eric Ciaramella: Yeah. That was a different age of nuclear saber rattling.

Anastasiia Lapatina: Of course. Yes.

Eric Ciaramella: You know, chicken, geopolitical chicken with nuclear weapons. So I think it's probably good that we're not in that, you know, era of unbridled.

Anastasiia Lapatina: Ukrainians may disagree.

Eric Ciaramella: Maybe, but I get it, but.

Anastasiia Lapatina: Well also, speaking of the nukes, a big, as far as I understand, a big part of extending these security commitments and just in general, the, the so-called nuclear umbrella that the U.S. had or its allies was to stop those allies from getting their own nukes, right?

Eric Ciaramella: That has been a big part of it. Yes. Yeah. I mean, in South Korea in particular, there's been a longstanding discussion about whether they need an independent nuclear deterrent. Again, because they're not a hundred percent sure that the United States would, you know, fight for them.

So, but you know, on the nuclear point, there's been a debate over many decades about the balance between nuclear and conventional deterrence. And you know, to what extent are we expecting our allies to shoulder the burden of conventional deterrence in defense? And then we come in with the nuclear weapons. So, you know–

Anastasiia Lapatina: Right.

Eric Ciaramella: There's a certain expectation, like in the South Korean case, there's an expectation that they spend on their military, that they have a, a, a fighting ready force. It's one of the disputes we've been in with Taiwan, for example, where we don't currently have a treaty alliance.

But, you know, successive administrations have been criticizing the Taiwanese for not taking their own defense seriously, because we expect, just like the Ukrainian army held off the Russians on their own, with their own manpower. You know, there is an expectation that our allies would do a lot of the fighting and then we would come in with this higher end weapons, whether it's, you know, air, power, naval, or nuclear, if it, if it got to that.

And so that's been a debate though I mean, that was a debate throughout the Cold War with our European allies as well.

Anastasiia Lapatina: And also in the Asian context.

Eric Ciaramella: Yeah

Anastasiia Lapatina: Cause all of the subsequent Cold War American presidents had this sort of switching tug of war between how much to spend on the, on the defense and, and you know, how much to rely on the conventional forces.

And then, you know, several presidents in eventually the American, especially after the Vietnam War, right? The American policy sort of was like, okay, you guys have to really be responsible for your own security. We can provide the nuclear umbrella, but the conventional forces are your, mainly your burden, right? So there was a little bit of a journey there.

Eric Ciaramella: There was, and you know, part of the issue too is that a lot of these security arrangements and agreements were very non-transparent. And so, you know, particularly–

Anastasiia Lapatina: What do you mean by that?

Eric Ciaramella: In the fifties and sixties, you know, when presidents and CIA directors and secretaries of defense were kind of making these arrangements with different countries beyond just the treaties themselves, which were obviously transparent in the sense that they went through a whole, you know, public hearing process in the Senate and they got a vote and all of that.

Those are just the tip of the iceberg. There's hundreds of other agreements that the United States concluded with a whole host of countries about basing, about defense sales, about training, about all of that. So much so that in the, in the late sixties, you know, Congress, particularly the Senate kind of stepped in and said, wait a second. We're, you know, we're worried about all these creeping commitments from the United States. We don't really have good visibility into them. You're, you've stopped using the treaty mechanism.

Because again, the last new treaty that the United States signed was in 54 and then the revision with Japan in 1960. And then from then, you know, presidents have been using this format known as an executive agreement, where the president uses his constitutional authority to, to make the agreement. And Congress wasn't seeing what was going on, but was saying, you're getting us into all these different arrangements where we're, you know, the United States is on the hook for these huge commitments.

And so there were hearings and there was a committee that was a special committee that was set up by a senator from Missouri, Stuart Symington. And he issued this big report in 1970 called the Symington Report, which basically uncovered that the public didn't know about dozens and dozens of security arrangements of different sorts, that the Senate was making an argument that, you know, the White House was kind of abusing the power to create these agreements and really need to put any major national commitments through a regular Senate treaty vote.

And there was even a Senate resolution in, in ‘69 called the National Commitments Resolution, which said that any major commitment of American force and resource military resources needed to go through the Senate.

So, you know, did that really do much? You know, it, it shed some public light on the fact that a lot of these security commitments were not very transparent, but it's sort of been a constant. And that's why it's interesting to me now that Congress is almost completely silent on the issue of a security guarantee to Ukraine.

I mean, even you fast forward from these hearings in the late sixties and early seventies to the discussions under the Bush adminis-, second Bush administration about a security commitment structure agreement with Iraq. And at the time it was Joe Biden in the Senate who was leading the charge saying, wait a second, if you're gonna make a huge commitment to Iraq, you need to go through the Senate process so we understand exactly what we're getting into here in terms of resources, and so on, the expectations of the Iraqi government.

So if I were a senator right now seeing this whole discussion of security guarantees for Ukraine, I'd be looking back at this history and saying, wait a second, A, for this thing to be credible and B, for us to really understand what kind of resources were on the hook to appropriate in years to come, we really need to be involved in the policymaking. And so, you know, I kind of hope that discussion will happen because it does make any security agreement or commitment much more credible if you've got both branches of government involved.

Anastasiia Lapatina: That is very interesting. But it also points to something that will keep coming back to, I think throughout this episode that people these days use the phrase security guarantee.

But as far as I understand, governments don't really use the word guarantee. They use the word commitment and even then, nothing is guaranteed to anyone.

Eric Ciaramella: That’s true.

Anastasiia Lapatina: The language of the treaties is extremely vague. The sort of verbal commitments between leaders can be very vague. There is like a million different components of, of, of a certain commitment. So like there is no one formula right there. There is no one sort of, the U.S. guarantees security to Ukraine and this is what that means. Like that doesn't exist

Eric Ciaramella: Right, yeah, it's true. There's no such thing as guarantees in the realm of international politics. But you know, although there is not a kind of legal definition of a security guarantee, you'll never find it in any U.S. law, kind of define this is a guarantee, and this is not a guarantee.

There is a very common understanding and you see it in, you know, political level communicates from the State Department, White House, so on that guarantee is a very narrow term that refers to treaty level mutual defense agreements or collective defense agreements where there is an expectation of U.S. military involvement to repel any attack. And vice versa.

Anastasiia Lapatina: The scale of the involvement though isn't defined. Right? So it can be fully–

Eric Ciaramella: No, it's never defined

Anastasiia Lapatina: –troops. It can be just air, power, whole sort of things.

Eric Ciaramella: Exactly. It's never defined, but guarantees again, which are sometimes called commitments are, are understood to basically be, you know, Japan, Korea, Australia, we haven't talked about that, the Ansei Treaty, NATO, and there are a couple of small marginal cases too, like we have some with the Pacific Islands where we have this free trade free association compact. And there was one for the Panama Canal as well.

But the guarantees are a very small subset of the hundreds of agreements and arrangements that we have with different countries. And they are, they're meant to signal some, you know, additional robust involvement of the United States to include the deployment of military assets directly to confront the threat.

So in this case, when we're talking about, you know, when Trump and Zelensky and European leaders are talking about security guarantees, I think it's, it's a very unhelpful conversation because they're setting up the narrative to be something that's like these other things, which it's not.

It's not because the parameters of what we're talking about here are about provision of security assistance, potentially some small troop contingents that would be doing training or something like that. But not, we're not talking about, you know, a, a treaty level pledge by the United States or these European countries to actually intervene and fight on Ukraine's behalf. No one is talking about that.

Anastasiia Lapatina: We're gonna have to unpack that later because I'm already getting emotional about it as a Ukrainian.

Eric Ciaramella: Yeah.

Anastasiia Lapatina: But, but, and it's in a very important conversation to have. But before we go there, there are a few very interesting examples that I still wanna talk about before that.

And the examples fall into this interesting category of sort of the non-treaty commitments. And the first one that comes to mind is, of course, Israel.

Eric Ciaramella: Yeah.

Anastasiia Lapatina: And that kind of, the Israeli model gets evoked in these conversations about Ukraine all the time. And it's an interesting case cause Israel and the U.S. are not in any sort of formal military alliance. They don't have a formal security treaty, no mutual defense clause.

But they do have this so-called special relationship.

Eric Ciaramella: Right.

Anastasiia Lapatina: And the U.S. pours a ton of money into Israel and also intervenes and helps it defend itself during the attacks–

Eric Ciaramella: Yeah.

Anastasiia Lapatina: –even though there isn't a treaty ordering the U.S. to do so. So what is, what is the basis of the so-called special relationship? How does it work?

Eric Ciaramella: So this came about in the mid seventies after the Yom Kippur war, and was an effort by Henry Kissinger at the time to come up with an incentive structure that would keep the peace between Israel and Egypt. So he made a series of assurances and promises to both parties to, you know, lock in a ceasefire.

And the Israeli assurances eventually got written down in this memorandum of understanding in 1975, which was, again, vague, but probably more detailed than some of these treaties. But it was just a memorandum. So, you know, it didn't, I mean, it arguably didn't even have the force of executive agreement, although maybe it did, maybe it didn't. This is all kind of debatable.

But the point is it was, it was a rather informal codification, but from that sprung, this very significant U.S.-Israel defense and security relationship. And so the idea was that the United States would provide a yearly allocation of funds to Israel to procure U.S. weapons. And part of that was also 25% or something was to be used for Israel to invest in its own defense industry.

And it's sort of, you know, you hear about the Danish model in the Ukrainian case where Denmark and now another, a bunch of other countries have been directly supporting the Ukrainian defense industry, direct infusions of cash for Ukraine to build up its own production. This was the case that the United States did with Israel as well. And it allowed Israel to build up one of the, you know, most technologically advanced and capable defense industries in the world. Now, Israel is selling, you know, weapons and components to, you know, all western militaries as well. They're like really excellent in missile defense and, and so on and so forth.

So, but this, this arrangement of the yearly appropriations, you know, it continued for a certain period of time and then eventually they started negotiating these in 10-year chunks, starting with President Clinton, if I recall. And then there were annual, you know, funding kind of targets basically, which the leadership would negotiate. And then the president would go to Congress and make that request.

And in every case, Congress said yes because there was this wide bipartisan support for Israel. And so like you, you said there was this special relationship, so it went beyond the paper. If you can argue that in the Israel case, the paper commitments were a lot weaker than something like Japan, South Korea and so on. But the political unity in the United States, especially during the late Cold War era for a variety of historical reasons. It was so solidly in support of this arrangement that it was never really controversial.

The, the one kind of controversy came when again, Kissinger was flying around and making all these, you know, doing the shuttle diplomacy and making assurances to the Egyptians, to the Israelis back and forth, and Congress again had no idea what was going on. And it was again, Joe Biden at the time, who was a very young senator from Delaware on the Foreign Relations Committee who said, among others, wait a second, we need some transparency about what's going on.

And so you can go back and actually read some really interesting, you know, transcripts of Senate hearings where Kissinger was testifying and Biden and others were questioning him about what is the nature of these commitments? Are they binding? Are they, tou know which of them are legally binding, which are not? And it, you know, Kissinger sort of tied himself in knots explaining that he saw some as binding and others as not binding. But it created a very confusing legal picture. That was eclipsed though by the fact that on the political level there really wasn't any controversy. So all of the votes just sort of sailed through every year when it came to defense support for Israel.

Anastasiia Lapatina: Do you think there are any useful lessons that Ukraine can take from this sort of model? Because even our government has evoked it as in, you know, I mean, in some ways I think they've done it to signal their support for Israel at certain, you know, hard moments around October 7th and things like that. But saying that, you know, we perhaps strive to be like Israel, build up our own security to defend ourselves. Is, is there any validity here? Are there any actual lessons that we should be learning from this arrangement?

Eric Ciaramella: Definitely. I, you know, you're right that it was, it was President Zelensky who first started talking in spring of ‘22 about Ukraine becoming a big Israel. And that it would have a powerful army of its own and defense industry and so on. And I think most people didn't really take it seriously at the time.

If you fast forward three and a half years, that is, you know, in some respects what is happening. You know, Ukraine has shown the ability to fight and supply itself to a certain extent, with certain weapon systems that can be produced indigenously. I actually made the case back in a paper in the middle of 2023, which was before October 7th, that there were several lessons to be learned from the so-called Israeli model. Again, it's not a perfect analog. Israel has nuclear weapons. Its adversaries don't, yet.

Anastasiia Lapatina: And famously we also do not. We as Ukrainians.

Eric Ciaramella: Exactly.

Anastasiia Lapatina: And we're very bitter about it.

Eric Ciaramella: So that is a very clear difference between the two. But there were elements of this U.S./Israel arrangement over the years, including the predictable yearly allocation of support for Israel to purchase U.S. weapons. And then the portion of it, which has been only recently scaled back like in the 2010s. But for several decades, having a portion of it go directly to Israeli manufacturers to have them build up their own sustainable, thriving defense industry.

And so, you know, like I said, in some ways the fact that you have the Danish model now, which several countries are, are participating in that already is an analog to what was called offshore procurement, I think is what it was called. But anyway, the 25% of American, you know, budget support that went to Israel that they could use for their own domestic manufacturing. So you have elements of it there.

And the, the overall kind of overarching theory is, you know, there are no U.S. troops deployed in Israel. There's no treaty level guarantee of U.S. intervention. It's true that the United States did intervene, sort of in an unprecedented way to help Israel shoot down Iranian missiles on a few occasions. But the United States has not participated in Israel's number of ground wars and there's no expectation thereof.

From the Israeli side is and I'm not an Israel expert, but from what I understand, Israeli governments have not wanted a treaty level alliance because it would encumber them with certain responsibilities and duties, frankly which they now, with this informal alliance, can kind of push the envelope and pursue whatever policy they want even amid very, very strong criticism from the United States.

Anastasiia Lapatina: I mean, we're seeing that right now, I think.

Eric Ciaramella: Exactly. So it's hard to imagine a NATO ally doing something similar, although you can argue Turkey and the Kurds, you know, kind of came to that.

But still like, you know, Poland for example, something like that, you know, the countries that are really concerned about keeping the U.S. involved and keeping the U.S. security guarantee credible go to great lengths to make sure that they don't offend and upset the United States. And that's clearly not the case with Israel right now.

Anastasiia Lapatina: Israel is not in that business, no.

Eric Ciaramella: Yeah. But again, the point is I, you know, I don't wanna make us think that every point in the U.S./Israel relationship has to find an analog or not in the Ukrainian case, there are just little bits and pieces of lessons that you can kind of pull from all the different security arrangements. And again, the Israel one has those valuable pieces that I mentioned earlier.

Anastasiia Lapatina: I agree that the model isn't perfect, especially considering that apart from just the different context, but also Ukraine is seeking a security guarantee specifically to have that as a deterrent to prevent Russia from re-invading. At least that's how the Ukrainian government is articulating it.

And the Israeli model is clearly, and obviously not a deterrent. I mean, Israel gets attacked all the time. And then also, as you've mentioned it, realizing bipartisan support, which some have argued is I mean, it's hard to say how possible it is for Ukraine to maintain that long term–

Eric Ciaramella: Yeah.

Anastasiia Lapatina: –for this kind of arrangement.

But, so moving on from Israel, another fascinating case, which is to me even even more sort of complicated and thus interesting, is American security sort of commitment to Taiwan. And just like with Israel, there is no treaty that says that the U.S. must come to Taiwan's defense if it is, for example, invaded by China, which is arguably quite likely. And yet–

Eric Ciaramella: There was a treaty.

Anastasiia Lapatina: Yes. And then it was–

Eric Ciaramella: There was a treaty and now there is not a treaty.

Anastasiia Lapatina: Yes. Right now, right now, yes.

Eric Ciaramella: Yeah.

Anastasiia Lapatina: But, so right now there isn't a treaty like that. But still, not only, there is a lot of debate in recent years about exactly how to make sure that the U.S. is ready to defend Taiwan militarily. But also the U.S. governments have at some moment signaled their willingness to do that. So what, what is going on there? How does the U.S. commitment to Taiwan really work?

Eric Ciaramella: Okay. So as I said there, there was initially a treaty that was signed in the early years of the Cold War, and then as we shifted our recognition from Taipei to Beijing, diplomatic recognition, President Carter withdrew from the treaty in 1978. Congress challenged it actually, and said that the president didn't have the authority and needed to check with Congress.

The Supreme Court ruled that the president did have the authority to withdraw from the treaty. But as a sort of, not consolation prize, but a, an antidote to this sense that we were leaving Taiwan in a security vacuum, Congress passed with overwhelming majority the Taiwan Relations Act in 1979, which is a regular law. It's not a treaty. So again, it went through both the House and Senate. It's a regular statute.

And again, it has this kind of vague-ish language about the United States. So there are commitments that Taiwan makes to arm itself and be ready to defend itself, but then also that the United States sells defensive weapons to Taiwan that are sufficient for self-defense. I forget the exact wording. But it kind of created this principle of defensive self-sufficiency, et cetera.

And so the Taiwan Relations Act, it actually has become the cornerstone of the U.S. Taiwan security relationship because there is that statutory requirement. It comes with some reporting requirements and so on, and Congress has a vested interest in making sure that it stays relevant. But above all of that is the, you know, it's called strategic ambiguity as to whether the United States would actually intervene to defend Taiwan. And you know, Joe Biden famously came out and said we would, and then officials–

Anastasiia Lapatina: Retracted, right?

Eric Ciaramella: –said that there was no change in U.S. policy. And the idea is to keep it ambiguous because the thinking is that if, if the United States makes too direct of a commitment, then it will sort of embolden China to take the leap and initiate something before we're ready, or in a way that, you know, we've sort of upended the very uneasy balance that exists across the Taiwan Strait.

Anastasiia Lapatina: That sounds very similar to me. The U.S. is trying to not escalate with China.

Eric Ciaramella: Yeah. Yeah. Perhaps again, it's, it's delicate because it isn't entirely clear what we would do anyway. And there have even been people in Trump's orbit, even though Trump is supposedly very concerned about China, you've seen some Trump administration officials who have hinted that, you know, maybe Taiwan is indefensible anyway.

Anastasiia Lapatina: I thought that this was pretty clear cut that like that officially it was ambiguous. But unofficially, everyone knows that like people are war gaming this scenario all the time, and this is sort of like the main focus of their theater is to defend Taiwan and that the U.S. will do that. I guess I'm, I'm wrong,

Eric Ciaramella: I mean, I think a lot of thinking has gone into it and a lot of war gaming, and it has shown that it would be an extremely difficult task. Not to say that it wouldn't happen, but also not to say that it would. And there's a lot, there's a big spectrum.

Anastasiia Lapatina: Okay.

Eric Ciaramella: There's a big spectrum in between–

Anastasiia Lapatina: Just FYI, Eric is no longer in government. He isn't obligated to say it like this.

Eric Ciaramella: I, again, I'm not, I'm not an Asia specialist. This is my understanding, talking with people who worked on the issue is that it's, it's ambiguous for a reason. And the United States feels like its interests are most protected by having this level of ambiguity. But by over time, supplying Taiwan with enough defensive weap-, coastal defense, air defense, all this kind of stuff, making sure Taiwan's investing in its own defense so that they can make themselves a porcupine that deters China from ever initiating some kind of actual conventional attack on Taiwan.

And the thinking now also is that, you know, if China really wanted to, you know, reunify with Taiwan, it probably wouldn't go directly into a, an amphibious assault anyway, classical like beach landings and so on and so forth. That it would be a lot of economic coercion, blockading, things like that first, and there would be you know, kind of a turning up of the heat. So we would have plenty of indicators. And also it's not necessarily the conventional war that could weaken Taiwan to the point of kind of having no choice.

Anyway, we're digressing a bit, but the, your overall point about introducing the Taiwan case, I think it's interesting because it shows the power of U.S. statute, and in the case that this went through a regular legislative process, there is a statutory underpinning for the U.S./Taiwan relationship.

So when thinking about models for Ukraine, you know, you have these three different legal models in the United States, a treaty, a statute, and then these sort of executive agreements that are a bit more nebulous. And I've argued in previous papers that for Ukraine, at least, to get the legal and political side as tight as possible, you need either a statute or a treaty. And that the informal executive level agreements are just not enough in this case.

Anastasiia Lapatina: Okay, so let's transition to perhaps the most important part of the podcast, which is NATO and NATO's Article Five. And in the context of Ukraine right now, just in the past few weeks, we, we've heard a lot of people, a lot of leaders, European leaders talk about, you know, hoping to come up to an arrangement for Ukraine that's NATO-like is sort of the phrase that’s been used. That they're looking for something like Article Five for Ukraine, but that wouldn't include NATO because President Trump took that off the table.

So let's unpack what's in NATO's Article Five. I think a lot of people don't realize how ambiguous it is because everyone knows that that's sort of the golden standard of that guarantee of a commitment of like, that's, as Biden said many, many times, ironclad. But the, the wording there is actually super vague. It says that an attack on one member of NATO is an attack on all of them, and that all members have to come to the defense of the attacked one by taking the action that they deem necessary. Which could mean really anything could mean–

Eric Ciaramella: Yeah, a statement.

Anastasiia Lapatina: A statement or, you know, sending blankets or,

Eric Ciaramella: Exactly.

Anastasiia Lapatina: You know, it, it, it doesn't really mean sending troops and yet it is still considered the gold standard of the security guarantee.

Eric Ciaramella: Right.

Anastasiia Lapatina: So how did that happen? Like what makes it credible despite the vague wording?

Eric Ciaramella: Yeah. What makes it credible? So it's 70 plus years of work within the alliance, consultations at the leader level, so annual summits, ministerials a couple of times a year and constant contacts at lower levels. You have the North Atlantic Council, the NAC, where you know the permanent representatives meet all the time and are talking, sharing information, developing joint threat assessments.

You have an institutional staff in NATO that's working on all kinds of issues. You know, contingency planning and you know, making sure that members are, you know, kind of paying their fair share and that their defense budgets are going to the right thing, and that they're modernizing their armies. And interoperability, which is the ability to use each other's weapons and have the same kind of standard, you know, across the alliance.

It's about training exercises. There's a constant, I mean, you look at any given point, there's probably some kind of NATO exercise happening where different militaries with the United States are practicing certain scenarios and getting better at talking with each other and so on and so forth. I'm kind of working my way through, through the spectrum here.

But you've got U.S. defense sales. So a lot of these countries purchase U.S. equipment. We see it now when we're talking about Patriot systems. You know, Germany, Romania, Spain, others have Patriots that they've bought from the United States. There's a whole range of other things. Intelligence sharing, that's a big part of it.

And then you've got, you've got real forces on the ground, and that's an enormous part of it where you've got a hundred thousand or you know, more or less American forces stationed in Europe at the moment that are there, you know, in order to reassure the allies and deter the Russians. And it's not just about being there, it's also about having these contingency plans fleshed out.

So, you know what may have been a vague idea, let's say when the Baltics joined NATO in 2004. No one had a contingency plan at that time. It was sort of a political level agreement. You're joining the alliance. Russia was weak. It was a very theoretical idea. Well, over time we've realized that actually we need to figure out a way that we would defend the Baltics, and geographically it's not the easiest defense problem.

So starting after the Russia/Georgia War, and then really picking up after the first Russian invasion of Ukraine, the seizure of Crimea, and so on, there's been a move to really pin down what are the specific plans and resources that would be needed to defend the Baltics in different scenarios of a, of a war with Russia. And so, you know, the Baltic countries should be much more reassured now. These, these plans are not public, but they are known within NATO about what the different allies would provide, what the U.S. role would be, and so on and so forth.

And it's clear, and we've signaled this to Russia, that we have something behind it. So it's not just the paper guarantee, because like you said, Article Five on its own doesn't really say that much. It's about all this constellation, this suite of activities that have brought all of us closer together in these 70 years in this institutional structure that is very well understood by the Russians. It's very well understood by the allies.

And so long as, you know, the U.S. president stays committed to the alliance in a broad sense, and we keep, you know, some forward deployed forces and we keep up this intelligence sharing and, and constant political conversations, contingency planning and so on. You know, my view is that it, it stays credible. But it's about, like I said earlier the language itself and the treaty is just really the tip of the iceberg and the, the meaningful part is still well underwater, but the Russians clearly understand that there's a lot of meat there.

Anastasiia Lapatina: So considering everything you've just said, it would be fair to say that there has always been an understanding that if the Russians attacked the Baltics or Poland or any other NATO ally, that the U.S. military would be immediately directly involved in defending that ally. That has never been questioned, right?

Eric Ciaramella: Yeah. I mean, I think that's pretty clear. I think you can make an argument that in the current environment, it's maybe a little muddier than it has been. But I still think that the commitment is there, even in this more uncertain political environment today. So yeah, I think it's, it's pretty clear. And that gets to, I think your fundamental question is can you create a NATO like arrangement for Ukraine that isn't NATO. And something like Article Five that isn't Article Five, and to me it's completely nonsensical.

Anastasiia Lapatina: Why?

Eric Ciaramella: Because NATO and Article Five are unique and specific and have taken 70 plus years of constant policy work to maintain the credibility of the deterrence that the alliance has.

Anastasiia Lapatina: Longer than Ukraine existed as an independent state.

Eric Ciaramella: Sure. But when you create something new out of nothing, there's a lot of resources that have to go into backing that up. I'm not saying we shouldn't create something new, but saying that it's gonna be like this other thing. You know, you worry that you're gonna create a cheap knockoff, which has the effect of making the new thing not very credible.

But also cheapening the original thing where, you know, you had Steve Witkoff, the president's envoy going on CNN and being asked about this, and he says, oh, it'll be like Article Five. We got the Russians agreement, which is a whole separate thing that I don't think the Russians signed off on this at all. But he says, we got the Russians agreement for an Article Five-like commitment. And then Jake Tapper says so the United States would intervene and he said, well, no, no, no, it would be without any of the intervention and the forces.

But he's not the only one. The Prime Minister of Italy, Giorgia Meloni, has also been talking for months about an Article Five type guarantee to Ukraine that doesn't encumber any Western countries to go to Ukraine's defense directly. So then what is it? Because that's, that is the main point of Article Five is the well understood solemn commitment that an attack against one is an attack against all.

And we would treat an invasion of Narva the same way as we would treat an attack on Pittsburgh, which means that we would mobilize our resources and meet the threat and the challenge. And if you take that part out of it then what do you have?

Anastasiia Lapatina: What are you saying?

Eric Ciaramella: Yeah, exactly.So, so I think this is a very unhelpful conversation and we should really break it apart. And if we're gonna be talking about building a security arrangement for Ukraine, it really needs to start from a clean slate and understand what are the tools at our disposal? What are the political and practical limitations of the day, and how do we create the strongest possible arrangement from that?

Not we have this great thing in NATO, we can try to create something which we all understand is not gonna be the real thing. It's a cheap knockoff version. And then wave a magic wand and suddenly we think Russia's gonna take that really seriously. It just doesn't work that way.

Anastasiia Lapatina: So to summarize everything that we just talked about for almost an hour, when people say a security guarantee, they refer to a commitment that may or may not include many components, right? There is provision of aid, selling of weapons, presence of troops, a mutual defense clause signaling, which is a very big part of it as well. And so each of those individual components can look different as well.

So what combination of these is necessary you think, to make Ukraine safe after the war? And also considering that Russia is the opposed to the presence of foreign troops in Ukraine, is there any arrangement where there are no troops, but the security commitment is still a sufficient deterrent for Russia?

Eric Ciaramella: Yeah.

Anastasiia Lapatina: Or is that just sort of impossible?

Eric Ciaramella: This is the main question, and I think, you know, before we dive into this part, it's important to recognize that we have two separate but related challenges. One is compelling the Russians to stop fighting. The other one is deterring them from attacking again, once the fighting stops.

And the problem is that we don't have a very good solution for problem number one, compelling them to stop. And so we're jumping forward to create a solution to problem number two, when the actual circumstances and path to get there are still really unclear. So we have a bit of a, a challenge there. It could be some of the same tools to achieve both, but we're talking about creating these security arrangements and guarantees in a hypothetical future where we don't know quite how to get there.

So what could the components of this, this security structure be? I think the main pillar of it has to be the Ukrainian army. A strong, flexible, well-trained, well-equipped, Ukrainian armed forces that is capable of deterrence by denial, which is basically the ability to block the military advances of any aggressor and have enough force locally such that the, the planners on the other side say, we're not gonna be able to roll over these troops in a day. This is gonna be a huge slog, and we're never gonna achieve our minimal objectives. So don't even bother trying.

How do you get there? You get there through predictable multi-year financing for the Ukrainian Army, both to purchase weapons from the West, but also importantly modeled after what Denmark has been doing direct support to the Ukrainian defense industry to build out their own production lines. You get there by the Ukrainian government taking a really hard look at its manpower challenges and actually acknowledging them. This is something my colleague Mike Kofman has been talking about for years now. This is not something that should be swept under the rug.

You know, excuses that there's not enough weapons or not enough ammo, it just doesn't cut it, this is a problem on all sides. Like definitely the West needs to keep supplying, you know, weapons and ammunition, but the Ukrainian government and military leadership need to take some tough decisions on manning so that they don't have this porous frontline where the Russians can just bust through like they did a few weeks ago in Dobropillia. And create this whole sailing and a giant crisis on the front because there were like two guys manning a trench.

You can't have drones solve the whole thing. So you need a sustainable manpower reserve to be able to staff the Ukrainian army, you know, for many, many years to come. That obviously has a demographic angle with so many Ukrainians who have gone abroad and so on. So it needs to be worked out, but it needs to be taken very seriously.

So you have this sustainable funding, equipping and manning, and then you have all kinds of training. You have intelligence sharing so that Ukrainian army has a sense, a very good sense at all times of what the adversary is planning. And then from there you can start talking about whether it makes sense to have some kind of troop presence on the ground. And probably it would be more in the form of trainers rather than any kind of enhanced forward presence like you have in the Baltics and Poland, where it's more of a heavy combat kind of mission.

You know, you could have some NATO troops, officers that are embedded in various parts of the Ukrainian military to ensure kind of proper operational level coordination. There's been this huge problem in the Ukrainian military where there's dozens and dozens and dozens of brigades, and they don't often coordinate very well with each other.

There's a move now in Ukraine to create this core level structure, but probably, you know, one of the biggest deficits on the Ukrainian side is command. And having the commanders who can operate at higher echelons and coordinate these different formations to be able to operate across an entire front. NATO can help with that, so on and so forth.

So I think you build it up that way, and I don't think there is ever, at least in the present geopolitical circumstances, I don't think there is ever going to be a legally binding commitment by the United States or Europe to actually deploy their forces to Ukraine in case of a new invasion.

Anastasiia Lapatina: Why not?

Eric Ciaramella: Because I think so long as the threat from Russia remains acute, no Western military wants to tie itself into getting into a direct war with Russia over Ukraine at the moment.

I'm not saying it can't happen in the future. I, I do think Ukraine will get into NATO in our lifetime. As long as it doesn't agree to permanent neutrality in any of these documents. I think it will happen, but I think it will only happen kind of as, you know, the Finnish model, so to speak, where the Finns for many decades were not in any military alliance, kept a robust military and defense industry, and when the geopolitical circumstances were right, they joined NATO and they were ready to do it very quickly.

I think Ukraine has to wait until there's a change of leadership in Moscow and probably some chaotic moments there where it can have an opportunity to just come into the alliance quickly and be under the protection. Because you kind of, you have this dangerous moment from when you, you make a commitment to bring in a new ally, and then you have that commitment codified where your own credibility gets eroded if the attack keeps happening in that time.

Since we're in the middle of a war, like it's just unthinkable. It's unthinkable to really be talking about. You know, a NATO style security guarantee. So that's why I think, you know, there's, we haven't talked yet about the Istanbul agreements and all of that from early 2022, where there was this–

Anastasiia Lapatina: That's a part two of this.

Eric Ciaramella: Yeah it’s a part two and I know we're going on to an hour.

But just to say like there was this idea of a P5, UN P5 security guarantee for Ukraine where all of the five permanent members, including Russia and China, but also the United States would have this commitment to come to Ukraine's aid if it were attacked.

I mean, A, it's ridiculous on the face to have Russia as a guarantor. B, Russia wanted a veto over the whole thing, which would've rendered it completely pointless. C, even if you negotiated away the veto, the United States pledged to come to Ukraine's aid was not gonna be credible because we are not prepared to make that promise right now.

So I think you work with what you have rather than recreating NATO in some new form that is not NATO. You build it up and you create a bespoke Ukrainian lattice work of agreements and commitments that when taken together, they may not seem super shiny on the outside, but you have to have enough signaling that Russia understands there's mettle behind this. There is a Ukrainian army, which is extremely well-trained, which we're not gonna, you know, we're not gonna get to Kyiv in three days this time, next time, whatever it is. And the Americans are gonna keep supplying weapons.

Now, just kind of final word here, I was talking about deterrence by denial, which is having the Ukrainian army in place in sufficient numbers to block any advance.There's a another kind of deterrence, which is deterrence by punishment. So if Russia were to attack, if the denial part, let's say, wasn't enough to prevent them, then there would be additional punishment. So I think you can build that into a security arrangement. And the punishment would be snapback of sanctions if there is some lifting of them, that's a whole separate discussion. But a minimum snapback of sanctions that we have at this level in 2025. And you can create stockpiles, strategic stockpiles of different high-end weapons on NATO territory, that basically the doors would be opened up if there's a new attack and all the weapons would flow in.

So you have this issue, for example, of the German Taurus missiles. For a variety of reasons, the German government is still really reluctant to provide them to Ukraine at this present phase of the war. But could Ukraine negotiate a subsection of its security arrangement with Germany, which would be kind of like a Taurus guarantee where let's say there's a ceasefire, Germany would pledge to stockpile these weapons and have them available for Ukraine if Russia attacked again. And Russia would understand very clearly that the Germans will open the doors and Taurus missiles will be flooding into Ukraine, that adds to the deterrence.

But it's kind of like it's, it's building this whole recipe. It's like a big soup, and you have to figure out the different ingredients that you put into it and you have to let it marinate and cook for a while. It's not some obvious, like really easy solution here because yes, the easy solution would be to just take Ukraine into NATO.

But for a variety of reasons that I've mentioned. It's just not in the cards right now. And so we have to build this and play with the different components. And make sure that it's all, you know, packaged at the political level and signaled to the Russians such that they understand that it goes well beyond these paper guarantees, which they would probably challenge if they were just paper guarantees.

Anastasiia Lapatina: Eric, thank you so much. This was very interesting.

Eric Ciaramella: Thanks for having me. It was a great discussion.

Anastasiia Lapatina: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfaremedia.org/support. You will also get access to special events and other content available only to our supporters.

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