New Paradigms Forum
April 6, 2010
by Christopher Ford
Perhaps the most interesting thing about the Obama Administration's just-released Nuclear Posture Review (NPR) is that the White House seems fiercely intent upon ensuring that the story upon which everyone focuses today is changes that have been made in the description of U.S. declaratory policy – that is, changes in when the United States says it would, or would not, use nuclear weapons. It is perhaps not surprising, and by now seems characteristic of the Obama presidency, that the primary emphasis is thus being placed upon the realm of nuclear policy that is the least substantive, and the most characterized by the ephemera of symbolism and posture rather than concrete realities of real planning and capability.
More intriguingly, however, the obvious desire to make declaratory policy "the story" – evidenced in President Obama's pre-release media interviews stressing the point, and the White House's pre-leaking of portions of the otherwise closely-guarded NPR text dealing with use policy – suggests that analysts would be well advised to examine the rest of the document, to see what the White House would prefer not be everyone's first impression of U.S. nuclear policy. We'll have lots of time on this website to ponder the details of the new NPR, but be sure to keep your eyes open in perusing its text for things that don't look quite like the conventional wisdom of the disarmament community the administration has so assiduously been courting – things, in fact, that look remarkably like Bush-era approaches, or that demonstrate an underlying continuity of U.S. interest and strategic policy across multiple administrations that belies more recent rhetoric of "change we can believe in."
For now, however, let's take the White House's bait and assume that tweaks in U.S. declaratory policy really are the most important aspect of the new NPR. In this regard, let me concede up front that I'm surprised that the Review said what it did; the rumors coming out of the Administration during the last few days had suggested things might be more restrained, and the final product may reflect a last-minute intervention by Barack Obama himself. That said, the much-vaunted changes seems less significant than the White House would have us believe.
The Old Formula
Previously, the longstanding "negative security assurance" (NSA) offered by the United States held that – in the words of a 1997 Presidential Decision Directive by President Clinton – the United States would
"not use nuclear weapons against non-nuclear-weapon state-parties to the Treaty on the Nonproliferation of Nuclear Weapons, except in the case of an invasion or any other attack on the United States, its territories, its armed forces or other troops, its allies, or on a state toward which it has a security commitment carried out, or sustained by such a non-nuclear-weapon state in association or alliance with a nuclear-weapon state."
This was an ungainly mouthful, to be sure, but it basically meant that Nuclear Nonproliferation Treaty (NPT) states party were officially off the hook unless they attacked us (or a U.S. ally) in conjunction with a nuclear weapon state. The old formula was therefore actually quite a restrictive statement, though the Clinton Administration also made clear that this pledge didn't mean much of anything if someone attacked us with chemical or biological weapons. Indeed, the Clinton White House articulated a legal position that if we were attacked by any sort of weapon of mass destruction (WMD), it would be within our rights to respond with nuclear weapons if we deemed it appropriate. This doctrine of "belligerent reprisal" – which, fascinatingly, has never been repudiated by any U.S. administration, including President Obama – was used even to claim that legally-binding NSAs of the sort embodied in Nuclear Weapon Free Zone (NWFZ) protocols would fall by the wayside in the event of WMD attack. (If such derogation were permissible with respect to NSA treaty commitments, how much less credence must one place in mere declarations of intent?)
The Bush Administration had the bad manners – or perhaps honesty, which is often mistaken for ill breeding in diplomatic circles – to say this sort of thing more publicly than had its predecessor. In its 2002 National Strategy for Combating Weapons of Mass Destruction, the Bush Administration reserved the right to "respond with overwhelming force – including through resort to all of our options – to the use of WMD against the United States, our forces abroad, and friends and allies," but this policy was not new. This, then, was the "state of the art" with respect to declaratory policy that President Obama inherited.
The New Formula
So what does the new policy say? It is a simpler formulation, declaring that the United States
"will not use or threaten to use nuclear weapons against non-nuclear weapons states that are party to the Nuclear Non-Proliferation Treaty and in compliance with their nuclear non-proliferation obligations."
Note how far this is from the sort of "no-first-use" pledge urged by the disarmament community. The Obama formula would allow the use of nuclear weapons in response to a conventional attack – that is, one involving no WMD at all – by any NPT nuclear weapons state (e.g., Russia or China), or by any NPT non-party (e.g., North Korea). WMD attacks by non-parties, or by NPT nuclear weapons states (NWS) themselves, could also receive a nuclear response under this phrasing.
The new declaratory looks like it takes off the table potential U.S. nuclear responses to WMD by nonproliferation-compliant NPT non-nuclear weapons states (NNWS), but when one reads a little bit further in the NPR, one comes to this sentence:
"Given the catastrophic potential of biological weapons and the rapid pace of bio-technology development, the United States reserves the right to make any adjustment in the assurance that may be warranted by the evolution and proliferation of the biological weapons threat and US capacities to counter that threat."
Using nuclear weapons to deter any sort of biological weapon (BW) attack, therefore – as well as to deter any sort of attack at all by NWS or NPT non-parties – remains Obama policy as it had been under both Bush and Clinton. (In fact, the Obama formula would not seem even to rule out using nuclear weapons preemptively or preventatively against NWS, NPT non-parties, or nonproliferation-noncompliant NPT NNWS, or in the face of terrible BW threats from any NNWS.) Only chemical weapons (CW) attack, it would seem, has really been officially removed from the picture with regard to NNWS. Since there seems to be relatively little fear of CW attack in U.S. circles today – or at least not any perception of strategic threat, in contrast to other WMD forms or cyberattack – this doesn't seem too dramatic an adjustment. On the whole, Clinton- and Bush-era ambiguity remains the order of the day.
One wonders what it actually means, moreover, to limit this NSA to NPT NNWS that are "in compliance with their nuclear non-proliferation obligations." The portions of the NPR that I've seen so far do not specify what this means, but the "nonproliferation obligations" applicable to NNWS are not limited to Article II of the NPT. The Treaty also contains Article III, for instance, which obliges NNWS to have a comprehensive safeguards agreement (CSA) with the International Atomic Energy Agency (IAEA). Today, some 22 states have still to bring CSAs into force. Since such failure is technically an Article III violation, it may be that the Obama Administration has now stated that these 22 NNWS fall outside the new NSA and thus could theoretically be subject, under its terms, to nuclear weapons use.
And look more closely. The Obama formula does not specify "compliance with … nuclear non-proliferation obligations" as being limited solely those obligations that appear in the NPT itself. Other nonproliferation obligations – and indeed any nuclear-related nonproliferation obligations – would seem to count, too. Fall out of compliance with your IAEA safeguards agreement, for instance, and you apparently fall out of the protective embrace of the Obama NSA and, as it were, into the category of "could potentially be nuked." (In recent years, a number of states have had safeguards problems of various sorts, among them Egypt, Libya, South Korea, and of course Iran.) Regardless of your compliance with the NPT, moreover, if you violate nonproliferation-related obligations imposed on you by the Security Council under Chapter VII of the U.N. Charter, you also become once again "nukable" under the new NSA. (Is Iran paying attention to this?)
It would seem that the violation of any agreement relating to nuclear nonproliferation – e.g., on export controls or refraining from proliferation-risky transfers, or abiding by Nuclear Suppliers Group guidelines – would count as well. Nor should we forget Security Council Resolution 1540, which is legally binding under Chapter VII, and which requires all states, inter alia, to "refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery," and to "adopt and enforce appropriate effective laws which prohibit any non-State actor" from doing so and "take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery." With regard to nuclear technology at least, a country that fails to comply with Resolution 1540 is thus apparently outside the ambit of the Obama formula too.
And who is to make such compliance assessments? With the exception of IAEA safeguards compliance issues, upon which the IAEA occasionally pronounces itself pursuant to its statute, there is essentially no international mechanism for doing so. Moreover, even where mechanisms exist, national governments have always reserved the right to make their own compliance judgments as part of their own national policy-making process. For its part, the United States reaches compliance judgments in its statutorily-authorized Compliance Reports drafted by the State Department's Bureau of Verification, Compliance, and Implementation (VCI). (The last such report appeared in 2005.) Since we're talking about U.S. declaratory policy here, one can only assume that the Obama Administration has thus now invested its own internal compliance assessment process with a whole new level of significance: a country that runs afoul of the State Department compliance analysts, in other words, apparently loses the nuclear-use protections of the president's new NSA. (Wow!) As I know from my time as second-in-command of the VCI Bureau, in fact, some formal U.S. compliance findings are actually classified – such as when they are based upon intelligence information that cannot publicly be revealed. This makes the new NSA doubly strange. Whether or not the U.S. Government considers a NNWS to fall outside the ambit of the Obama formula about "compliance with ... nuclear non-proliferation obligations" turns out to be something that outsiders – and any such NNWS itself – actually cannot necessarily know!
Fascinatingly, therefore, the new Obama NSA thus seems more ambiguous and porous the harder one stares at it. (Was this intended? Or did administration officials' eagerness to announce something "new" get out ahead of their critical faculties?) This is not necessarily bad, but it may be an overstatement to describe the new NSA as being more restrictive than previous U.S. policy statements. It might be fairer to describe it as just being different – and in some notably confusing ways. Don't count on Obama's foreign audiences feeling completely reassured by the much-vaunted new phrasing.
The Problem with Declaratory Policy
But it's not just a question of the administration having chosen an oddly idiosyncratic way of expressing things. More fundamentally, it is always difficult to know what to make of a country's declaratory policy in the first place. Precisely because such a decision is simply a policy choice, things can be changed as easily and quickly as they can be declared in the first instance. The Obama Administration went to some trouble in the NPR to draw attention to its "right to make any adjustment in the assurance that may be warranted" by BW threats, but of course the White House has complete discretion to modify its own policy declarations anyway. Nor need such changes necessarily be announced ahead of time: the President, as any commander-in-chief, can change his declaratory policy at any point, with or without giving anybody any notice.
This is why declaratory policies on nuclear use are in one sense the least interesting aspect of nuclear policymaking. Such pronouncements may say a lot about the politics of the moment, and about how leaders wish themselves to be seen by the rest of the world, but it is intrinsically difficult to know what their real import is – or whether they have any at all. During the Cold War, the United States claimed a willingness to initiate full-scale nuclear exchanges with the Soviet Bloc in the event that our NATO allies were overrun by the Red Army. Some Europeans doubted this pledge, wondering whether a U.S. president would really sacrifice New York for Brussels or Bonn. (This doubt, in fact, helped become the basis for the development of nuclear weaponry by the United Kingdom and France.) On the other side of the coin, China has long professed a nuclear "no-first-use" (NFU) policy, but many observers, quite reasonably, simply do not believe it. What government faced with the likelihood of catastrophic defeat in a non-nuclear war, for instance, could be entirely trusted not to use, or at least threaten to use, any nuclear weapons it possessed? To put it simply, declaratory policy is just declaratory, and talk is cheap. Whatever the intentions of those who utter such pronouncements at the time, they may or may not correspond to what ends up being done in a crisis.
And with this observation about the inescapable contingency and ephemeral nature of declaratory policy, we return to the Obama Administration's effort to focus all attention upon its new NSA as the centerpiece of the 2010 NPR. This eagerness should make us all the more attentive readers of the body of that document, for there is a sense here of the parlour magician, eager to draw our gaze to his left hand because he's doing the really interesting things with his right. In this scramble for the relatively substance-free political high ground of declaratory policy, what actual policies and programs are being publicly de-emphasized? I am looking forward to working my way through the rest of the review.
Christopher A. Ford was formerly Senior Fellow and Director of the Center for Technology and Global Security at Hudson Institute.
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