March 18, 2004,
In the wake of international terrorism's most-successful strategic attack since September 11, 2001, the differences between Sen. John Kerry and President Bush about how the war on terror should be waged have become as clear as, well, the differences between the outgoing Spanish premier and his successor.
To be sure, even before last Thursday's murderous explosions in Madrid, Senator Kerry and his surrogates were denouncing the war in Iraq on the grounds that President Bush failed to get the U.N.'s permission for it and then was unable to turn the governance of the country post-Saddam over to the so-called "international community." This theme has, however, received mantra-like repetition by the Democratic candidate and his echo chamber ever since the terrorists took down Spain's government.
The good news is that the Bush administration has finally launched a powerful counterattack. Just about every senior national-security official from President Bush on down has suddenly been made available to explain the logic of removing Saddam Hussein from power as an indispensable part of the war on terror. They and key legislators (like Sen. Jon Kyl of Arizona, chairman of the Senate Republican Policy Committee) have at last gone on offense in response to the ceaseless, direct, and indirect attacks on the Bush team's integrity as it made the case for draining the "swamp" that was Saddam's terrorist-sponsoring, WMD-wielding Iraq.
Perhaps most importantly, President Bush and his advocates have directly challenged Senator Kerry, et.al., with respect to what may prove to be the most important foreign-policy issue of the 2004 campaign: John Kerry's worldview that U.S. freedom of action around the world can safely and, indeed, as a practical matter must be subordinated to the U.N.'s superior judgment. In a powerful example of the assault now being inflicted on the Kerry record and candidacy, Vice President Cheney declared yesterday at the Ronald Reagan Presidential Library: "The United States will never seek a permission slip to defend the security of our country."
The bad news is that the Bush administration risks grievously blurring where it stands on the appropriate, limited role of the United Nations in determining our security and other interests with its advocacy of a treaty that President Reagan properly rejected 22 years ago. As was noted in this space on February 26, the administration's declared support for the Law of the Sea Treaty (LOST) caused it to be approved unanimously by the Senate Foreign Relations Committee even though this accord would constitute the most egregious transfer of American sovereignty, wealth, and power to the U.N. since the founding of that "world body." In fact, never before in the history of the world has any nation voluntarily engaged in such a sweeping transfer to anyone.
This is the case because LOST creates a new supranational agency, the International Seabed Authority (ISA), which will have control of seven-tenths of the world surface area, i.e., the planet's international waters. That control will enable the ISA and a court created to adjudicate and enforce its edicts the right to determine who does what, where, when, and how in the oceans under its purview. This applies first and foremost to exploration and exploitation of the mineral and oil and gas deposits on or under the seabeds an authority that will enable the U.N. for the first time to impose what amount to taxes on commercial activities.
LOST, however, will also interfere with America's sovereign exercise of freedom of the seas in ways that will have an adverse effect on national security, especially in the post-9/11 world. Incredibly, it will preclude, for example, the president's important new Proliferation Security Initiative. PSI is a multinational arrangement whereby ships on the high seas that are suspected of engaging in the transfer of WMD-related equipment can be intercepted, searched, and, where appropriate, seized. Its value was demonstrated in the recent interception of nuclear equipment headed to Libya.
Similarly, LOST will define intelligence collection in and submerged transit of territorial waters to be incompatible with the treaty's requirements that foreign powers conduct themselves in such seas only with "peaceful intent." The last thing we need is for some U.N. court or U.S. lawyers in its thrall to make it more difficult for us to conduct sensitive counterterrorism operations in the world's littorals.
Since my last column on this subject, there have been several notable developments with respect to the Law of the Sea Treaty:
The United States Navy has trotted out arguments for this treaty that reflect what might be called the River Kwai Syndrome. Like the British senior POW in World War II who couldn't bring himself to blow up a bridge his captors would use to their military advantage, Navy lawyers seem convinced that a bad deal is better than none.
Even though this accord will manifestly interfere with important peacetime naval operations, JAG types tell us they think it will be good for their business if freedom of the seas is guaranteed by a new, U.N.-administered international legal system rather than by U.S. naval power. They speciously assert that a 1994 agreement negotiated by President Clinton fixes the problems that caused President Reagan to reject LOST never mind that the Clinton accord does not amend or otherwise formally modify one jot of the treaty.
Most importantly, one of those people, President George W. Bush, may recently have been awakened to the dangers political, as well as strategic and economic inherent in this treaty. In response to a question recently put to him by Paul Weyrich, the legendary conservative activist and president of the Free Congress Foundation, President Bush indicated that he was unaware of the Law of the Sea Treaty and his administration's support for it. It can only be hoped that, as he conducts the promised review of LOST, he will make clear he does not want it ratified, now or ever.
Better yet, President Bush should assign his trusted undersecretary of Arms Control and International Security, John Bolton, the job of arranging for LOST to be "unsigned" just as he did with respect to the fatally flawed treaty that created the International Criminal Court. Secretary Bolton would be particularly appropriate for this job, since he was also the prime architect of the Proliferation Security Initiative that the Law of the Sea Treaty would eviscerate.
While such developments are generally welcome, one thing curiously has not happened. The alarm about the defective Law of the Sea Treaty has still not been sounded by the likes of Rush Limbaugh and Fox News. It can only be hoped that, as the Senate hearings on LOST start next week, this oversight will be corrected, ensuring that the treaty is deep-sixed, once and for all.
Frank J. Gaffney Jr. is president of the Center for Security Policy and a contributing editor to NRO.