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Obama will bypass Congress, seek U.N. resolution on nuclear testing

President Obama (Pool photo by Chris Kleponis/European Pressphoto Agency)

President Obama has decided to seek a new United Nations Security Council resolution that would call for an end to nuclear testing, a move that leading lawmakers are calling an end run around Congress.

Top administration officials, including Energy Secretary Ernest Moniz, briefed lawmakers and congressional staffers this week about President Obama’s decision to push for the U.N. action this September, to coincide with the 20th anniversary of the Comprehensive Test Ban Treaty, which was adopted in September 1996 but was never ratified by the Senate.

National Security Council spokesperson Ned Price told me that the administration still would like to see the Senate ratify the test ban treaty but is “looking at possible action in the UN Security Council that would call on states not to test and support the CTBT’s objectives. We will continue to explore ways to achieve this goal, being careful to protect the Senate’s constitutional role.”

The administration did not consult Congress before making the decision, and leading Republicans, including those who opposed Obama’s nuclear deal with Iran, are irate that the White House plans another major national security move without their advice or consent.

“This is a plan to cede the Senate’s constitutional role to the U.N. It’s dangerous and it’s offensive. Not only is this an affront to Congress, it’s an affront to the American people,” Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) told me. “It directly contradicts the processes that are in place to make sure that Congress appropriately weighs in on international agreements.”

The Obama administration has tried for years without success to build Senate support for ratifying the Comprehensive Test Ban Treaty, which has been ratified by 164 countries. The Clinton administration signed the treaty, but the Senate refused to ratify it in 1999. There’s no chance that the current Republican-led Senate would ratify it before Obama leaves office.

Corker said Congress still hasn’t been able to see the proposed resolution, and administration officials did not specify any role for Congress in the U.N. effort. Lawmakers fear that a Security Council resolution could constrain the United States and subject American national security decisions to international oversight and potential legal liability.

“What it really does is allow countries like Russia and China to be able to bind the United States over our nuclear deterrent capability without the scrutiny of Congress,” Corker said. “Should we ever decide we may wish to test, we could be sued in international courts over violating a United Nations Security Council resolution that Congress played no role in.”

Corker said that regardless of one’s view on nuclear testing, all senators should be outraged that the administration has now changed tactics, choosing to abandon the effort to get the treaty ratified in favor of going through the United Nations. As with the Iran deal, there’s very little Congress can do to prevent the administration from executing its new strategy.

The White House decided not to submit the Iran deal to the Senate as a treaty, calling it an executive agreement. Republicans introduced a congressional resolution that would have expressed disapproval of the deal and potentially made the deal’s implementation more difficult. That resolution failed along a largely party-line vote. Said Rep. Mike Pompeo (R-Kan.): “The administration’s intention to once again not use the Constitutional process of ratification in the Senate, choosing the undemocratic method of going to an international organization to circumvent the democratic process, is precisely what happened between the U.S. and the Ayatollah.”

Several lawmakers and staffers acknowledged that another congressional effort to stop Obama’s new U.N. plan would have little chance of success, especially because of the distractions of the election season and the shortage of days lawmakers are in session this fall.

“They devised a plan to keep the United States Senate and Congress in general from weighing in on an important agreement that’s going to limit our ability to ensure our nuclear deterrent is in place,” Corker said.

Congressional aides briefed on the issue are already devising a list of options for how Congress can express its anger to the administration and perhaps exert some penalty, if preventing the move proves impossible. Options include cutting U.S. funding for the Comprehensive Test Ban Treaty Organization, an international body that receives about a quarter of its money from U.S. taxpayers.

Lawmakers and staffers also point to several administration officials who have publicly said they favored working with Congress on the issue. Only last September, undersecretary of state Rose Gottemoeller gave a speech during the U.N. General Assembly promising the administration would work with Congress on the test ban treaty.

“Ratification of the CTBT will require debate, discussion, questions, briefings, trips to the National Labs and other technical facilities, hearings and more, as was the case with the New START Treaty,” she said. “The Senators should have every opportunity to ask questions — many, many questions — until they are satisfied. That is how good policy is made and that is how treaties get across the finish line.”

The president’s push for U.N. action on nuclear testing came after months of debate inside his administration over how to advance his nuclear non-proliferation agenda. The president decided to move forward with this item after meeting with his entire National Security Council at the White House. Other nuclear policy changes could be decided and announced in the coming months.

The Obama administration and Congress share the blame for the lack of cooperation between the two branches. But the White House is cementing a bad precedent that will impact the next Congress and the next administration.