The Lawfare Podcast: How Much Trouble is NATO Really In? with Scott R. Anderson

[Audio Excerpt]

Scott R. Anderson: It is very unlikely that Congress could pass a law and force the United States to use military force in a way the president did not want to do. That wasn't the case in the Articles of Confederation. That was actually the way it was done. You would appoint commanders in chief, multiple, right, the legislature would, but that's not the option.

We moved away from that as we moved towards the modern Constitution, the actual U.S. Constitution, and that has left us in a situation where Congress has its own war powers, its own authority over use of military force, but they're much better suited to restraining it than compelling it. So Congress can cut off authorization, can cut off funding, can do a lot of other things to restrict how the president may choose to act, but is not very well suited to compelling the president to act. And that's a real problem for NATO or any treaty alliance, and the reason why Trump's statements are real concerning and are going to keep being concerning for Europe, even if 1250A stays on the books and gets expanded in the ways I just mentioned about litigation authorization.

[Main Podcast]

Tyler McBrien: I'm Tyler McBrien, Managing Editor of Lawfare, and this is the Lawfare Podcast, February 26, 2024.

At a South Carolina campaign rally on February 10th, former President Donald Trump told a crowd of supporters that while he was president he told, quote, "one of the presidents of a big country in the NATO alliance that he would not protect that country from a Russian invasion if that country didn't pay."

Trump then said, quote, "In fact, I would encourage them to do whatever the hell they want. You gotta pay. You gotta pay your bills." I sat down with Lawfare's very own Senior Editor, Scott R. Anderson to talk through Trump's NATO comments, why they're rattling European allies, whether a U.S. President could destroy the alliance, and how Congress might stop it. We also talked about why everyone here at Lawfare calls Section 1250A of the recent National Defense Authorization Act, the "Anderson Saves NATO Provision."

It's the Lawfare Podcast, February 26th: How Much Trouble is NATO Really in? with Scott R. Anderson.

So, Scott, we're gonna focus most of our discussion today on the legal aspects of NATO, but first I want to set the scene here to talk a bit about why we're discussing the legal aspects of NATO. So first, just to set it up, why are we here? What did Trump say? And why is it concerning?

Scott R. Anderson: So at an event in the past few weeks, I think about two weeks ago now, less than two weeks ago, former President Trump said something to the effect of when he was in the White House, he told European NATO members who asked him if, even though we have not met our spending targets for defense spending--we can go back and talk about what those are in a second--but even if we haven't met those, if Russia were to attack us, would you defend us? Or if someone were to attack us, would you defend us? And Trump said, "What I told them at the time was not only would I not defend you, I would encourage Russia or whoever we're talking about to do whatever the hell they wanted with you because you were delinquent on your obligations. You hadn't paid up. And so I wasn't going to defend you." Trump was putting this forward as a demonstration about how effectively he had brought in the NATO alliance in terms of pushing them towards increasing their defense spending, which has been a long-term U.S. Policy goal and a policy goal of a number of NATO members, not just the United States. Although the United States kind of carries the burden more heavily than any other individual member in terms of defense spending and defense capabilities. So he was really presenting it as saying, "Here's how I, by playing rough and being a little frank and willing to push the envelope with European allies, was able to negotiate a better deal for the United States." it's very much in line with how Trump often kind of lionizes his negotiation ability, his business acumen as a trait that's desirable. And as president, he's hard-elbowed, kind of shamelessly self-interested and willing to really go to the mat to negotiate a hard deal for himself, and in this case, for the American people, that's kind of the pitch, right?

The problem with this is that this occurred against a pretty complicated backdrop, different from it had been when Trump first started saying things like this back in around 2018. First, we now have a ground war in Europe, in the case of Ukraine, a major ground war in Europe, the first one in decades, depending--perhaps many, many decades, depending on how you feel about Yugoslav conflict or conflicts. It is one that involves a superpower, Russia nuclear power, that really is the type of military activity, the type of conflict that NATO was always kind of envisioned as addressing and has never had to address through its history. And in particular, this statement was made at a moment when it seems pretty clear Donald Trump is going to once again be the 2024 Republican nominee for the presidency, where even European audiences are well aware he is currently outpolling the incumbent president, President Biden, by narrow margins, but nonetheless doing better than him in U.S. polls. And when we know Russia is kind of on the comeback in Ukraine--at least it has seemed that way in the last few weeks by virtue of having accomplished a few strategic victories and reclaimed a bit of territory, a few strategic cities in Ukraine, Adygea being kind of the leading one in the last week--but perhaps more importantly, because I think a lot of that's more symbolic than really a changing in the ground in Ukraine, we know that part of the reason they have been successful is because the United States, and to some extent European allies, but really primarily the United States in recent weeks, has not been able to produce assistance that Ukraine badly needs and claims it badly needs. And that is primarily due to a hangup in Congress where Republicans in the House, and particularly Republicans that kind of associate themselves with President Trump, former President Trump and his global views, have said, "we don't want to give any more support to Ukraine." Or at least, "We're heavily resistant to it. We want to bargain lots of other priorities for it." And they've failed to reach agreement on what that is. In fact, they tried to negotiate for immigration concessions, got them, and then kind of backed out.

So in that context, this statement is really alarming and has really triggered a lot of sensitivities for American audiences and for European audiences. Even though, frankly, it's nothing new, it is nothing different than what former President Trump has said for years. The reason why it's serious is that he very well might be the president again. NATO is arguably, and certainly in the view of European audiences, much more important in a way than it was the last time former President Trump was in office because of the Ukraine conflict, because of Russia's clear willingness to engage in pretty costly ground wars in Europe, maybe not just against Ukraine, maybe against the Baltic states and other states that are parts of NATO and where NATO would be potentially directly implicated, Poland being another recent example. And because it is showing that the political weight of his views, of his perspectives, really is having a ground impact, even without him being in the White House. So if he's in the White House, it could have a much broader impact in a way that really undermines what has been the keystone of European security, since the end of World War II, which is NATO.

Tyler McBrien: Right. So as you point out, this is not the first time Trump has made such statements, nor is it the first time a U.S. President has. But the context which you gave was so helpful in describing what the stakes are here and why European allies and people in the United States are so rattled by this latest round of comments. Before we get into some of the legal questions on whether or not a president can withdraw from NATO, how to sort of save NATO, I want to address the funding question that you hinted at a bit earlier. In keeping in mind the stakes here, is there, though, a kernel of truth or some merit to what Trump was saying about the "you have to pay" aspect of this, or is it just completely wrongheaded to view this alliance as a ledger sheet or in such transactional terms?

Scott R. Anderson: Yeah. There is a point of policy merit underlying this, but not a point of legal merit. About 10 years ago, the exact year is escaping me at the moment, I want to say it was 2013 or 2014, NATO agreed that they were going to set a target of two percent defense spending. And they have kind of a shared definition of what defense spending means, but usually it means national defense, military capabilities, and then funding for groups like NATO, kind of joint enterprises like that. That all NATO members were going to commit to try and spend at least two percent of their GDP on defense spending and to reach that goal over the next several years, as soon as possible, and within 10 years. Right now, as of just a few months ago--I'm sorry, just a few weeks ago, the last report we have from the U.S. Defense Department is that 18 allies, so roughly half the alliance or so, is expected to meet that target this year. And those not reaching that target, according to the U.S. Defense Department under the Biden administration, have plans to swiftly meet that target to ramp up their defense spending substantially. That has been a pain point for the United States really over the last 10 years and before that. There's a reason why NATO felt pressure to reach that kind of shared agreement.

Europe has been experiencing what some people have described as a peace dividend. Since World War II, the continent, Western Europe in particular, has been substantially at peace. The Cold War was an overhanging reality. It always had this kind of threat of major interstate violence hanging over Europe, but Europe was under a predominantly U.S. security umbrelland particularly a U.S. nuclear umbrella. France, U. K. are nuclear powers, but not of the sort of scale or strategic significance of the United States. And because the United States had led this NATO-led security architecture--of which NATO really was the keystone, was the bulk of it, maybe not the entirety of it, there are other security mechanisms in play here as well, but NATO is the heart of it and by far the most important part of it. European countries have been able to ratchet down defense spending and ratchet up spending on a lot of other priorities, including social spending and social welfare and the sort of other things that in Europe are much more popular and important to people. And so in a political dynamics that sound probably a little alien to American audiences, where defense spending at high levels of defense spending is one of relatively few areas that have brought bipartisan and popular support in the United States, even as social spending is very controversial in Europe, it's really quite the opposite, at least in a lot of Europe, in Western European countries where they have, at least until recently, really been easy to get political consensus around different types of social spending, much harder to get around defense spending. People see it as saying, "Why is this something we're doing? We haven't been at a war in decades." And until recently, they could say, "It doesn't look like one's on the horizon. And we're in the security architecture, this U.S.-based security umbrella. That means we have a strong backstop, if there were any sort of threat of violence."

The war in Ukraine has really changed that perspective. And there's lots of reasons to believe that a lot of European countries have begun to think about this a little differently. And European publics, worth noting, have begun thinking about this a little differently. For example, a lot of Scandinavian countries have mandatory military service for their nationals and big National Guard sorts, voluntary conscription programs or enlistment programs, I should say these have been ramped up dramatically. You've got a lot more people participating in them. They're being funded differently, structured differently, actually taken much more seriously than they were for many, many years, and similar efforts are happening across the continent to take it more seriously. But this is a pretty recent development, and getting the political consensus around upping some of the spending as demonstrated by this latest report from the Defense Department just takes time. And on top of that, it also takes time to find ways to productively spend this money. A big problem Europe is having now is that frankly, it just does not have the production capacity to produce the arms it needs and other equipment it needs to field a large military or to support a military endeavor like Ukraine over the long period, over a long-term. For the last two years, the Europeans and the United States--the United States has a similar problem in that regard, perhaps not as significant. They've really been drawing down on their own stocks, drawing from their own supply chains and supply kind of pipelines, because most of this sort of equipment has multi-year pipelines from order to delivery, to build up the Ukrainian capacity, build up Ukrainian arms. But they haven't, and particularly Europeans haven't dramatically increased their own production capacity. I suspect in part because nobody really fully expected this to be a two-year war, at least initially, let alone what looks like it might be a five- to 10-year war, if it really becomes this longstanding war of attrition, which seems possible at this point, at least for the next several years.

So in light of all that, you do see these views changing in Europe. And there's probably some truth to the fact that Trump probably did motivate European powers precisely because of his willingness to kind of test the limits of the European security relationships to encourage, to begin to think a little bit more autonomously about their defense. But because Trump lost in 2020, because the Biden administration has been a strong booster of European alliances the last few years, they haven't felt that sort of urgency. Now with Trump coming back to the White House, they're beginning to feel that urgency again. And beginning to realize, "Well, can we live through another four years where we don't have the United States as a reliable ally in a moment where there's an actual land war happening just one country over from NATO's borders?" And in that environment, a lot of Europeans are beginning to come around to this view of, "Well, we do need to spend more on defense." And it's a question of how quickly they hit these targets. Even the last 10 years, they've been somewhat neglected.

All that is to say, though, while there's a legitimate policy concern that even Europeans, I think, recognize is legitimate at this point, that doesn't actually have a bearing on the legal obligations. The legal obligations of NATO have been in place since the North Atlantic Treaty was signed in the aftermath of World War II. They do not change depending on whether people hit these spending targets. These spending targets are not baked into NATO. They are a voluntary policy decision entered into by NATO members later that have no bearing on the legal obligations. So, this idea that President Trump said, "Oh, if you don't pay, I don't think I have any obligation towards you," that's not true. The United States has the same obligation towards NATO members, regardless of whether they pay or not. That said, there is a lot of flexibility in the joints about how exactly that obligation is understood and operationalized. That makes Trump's threat a serious one.

Tyler McBrien: Great, that's more helpful context. I think there's been this tendency, perhaps in some corners of the media to reach for an easy narrative of Trump makes off the cuff remarks about NATO on the campaign trail or to the media and it shakes a complacent Europe awake as they scramble for defense spending, but as you well laid out, it's a lot more complicated and longstanding than that. So I think in this same spirit of dispelling misconceptions or myths, I want to lay out some of the basics of the legal obligations. that NATO members have. So we mentioned some international legal obligations, follow-on agreements, and we haven't spoken yet of the most fundamental obligation, the much-talked-about Article 5. So could you just lay out some of the basics there? What are NATO members obligated to do, including the United States?

Scott R. Anderson: Sure. Now, Article 5 is a core provision of the North Atlantic Treaty. This is the foundational treaty that NATO members entered into in 1949 initially, and that sets out all the core parameters of the alliance. It's a short document. It only itself has 15 articles, if I recall correctly--14 articles, excuse me--that kind of lay out the core operational aspects of it. And it's been supplemented and built up by lots of subsequent implementing agreements, implementing arrangements. Every time NATO is expanded, and it's expanded many, many times, including twice just in the last year with Finland and Sweden, there are kind of accessory terms that is done through a separate international agreement that all the member states enter into and have to enter into unanimously to bring them into the alliance. So there are supplemental terms to this, but they remain the core foundational elements of this, and Article 5 is at the heart of it.

Article 5 is what is often known as a collective defense provision or collective security provision. And what it essentially means and says, or is understood to mean and say, is that an attack against one of us is an attack against all of us. In the context of NATO, it's slightly different than that. And I'm going to read it out loud and break it down a little bit. Article 5, the specific operational language, it says that, "The parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area."

There's a lot of parts of this to break down. The first thing that's worth noting is this isn't a full collective or mutual self-defense treaty because it is limited to the North Atlantic and Europe and North America. A separate version, Article 6, kind of expands that a little bit to clarify, well, it also includes French colonial holdings in Africa that it had at the time does not have anymore and a couple other kind of more international holdings of some of the NATO members at the time. But it's limited geographically in scope. It's not supposed to be applied anywhere. Although NATO has been involved in Libya. It's been involved in Afghanistan. It's been involved in other contexts as well by kind of voluntary action of the members. But importantly here, this obligation is triggered by an armed attack. That is a term of art that is linked to international law and the UN Charter, and essentially means something that's not entirely clear. It clearly means an armed attack, meaning a use of violence against a state, meaning its nationals, its territory, its personnel. But there's a debate among international lawyers as to what exactly constitutes an armed attack. Most people I think would agree that a truly imminent action constitutes an armed attack for purposes of international law. So if you knew you were about to be attacked, you wouldn't have to wait for the attack to happen. You could respond in self-defense before it--if it was truly imminent, you'd be aware of it. But people debate. what imminence means, what its limits are and have different views on that. There's also an argument as to whether there's a certain threshold of violence, whether there needs to be a certain level of seriousness before any use of violence constitutes an armed attack. Is a single rocket going across a border inadvertently, is that an armed attack or is that something less than an armed attack, even though it involves violence?

These terms matter because what this is essentially doing, what Article 5 does is it says that once one of us suffers an armed attack, something that meets that definition, then we all agree we have the right to respond to it as if it were an attack on us. That means that each of these states has a right to exercise individual or collective self-defense underneath the UN Charter, which means they have the right to respond with force on their own. Their right to individual or collective self-defense is one of the very few exceptions to the prohibition on the use of interstate armed force in the UN Charter. And the collective self-defense act of that is particularly important here, because that means that under the UN Charter, one state can ask the another state to exercise its self-defense for it or on its behalf. So if Iraq is attacked, it can go to the United States and say, "United States, please aid us in responding to this attack on us." That's actually what Iraq did in 2014 in the midst of the ISIS invasion there, or ISIS attack, I should say. Not a full invasion because a good part of it was already in the country. That's all to say that the main mechanism this accomplishes from a legal perspective is that it triggers it so that the United States does not have to wait for a specific request from a NATO member to respond with military force. In fact, they are all collectively understood to have consented to this idea that attack on any one of us is attack on all of us and we will respond accordingly.

Tyler McBrien: So, as you mentioned, the primary effect of Article 5 allows allies to respond to an armed attack as if they were themselves attacked. But, you've written elsewhere that one thing it does not do is obligate such a response. Could you expand on that?

Scott R. Anderson: Exactly. The language that Article 5 actually uses says that, "NATO members will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force." What that means is that the state that's providing the assistance actually gets to choose how to respond, that it clearly can include the use of armed force. And I think the often implicit assumption is that this often will because we're talking about an armed attack, but it need not necessarily. It gives a lot of wiggle room in this treaty structure. Notably, this didn't have to be this way. Just a year earlier from the NATO treaty, European countries entered into what is kind of a tighter security pact where they essentially said, "Every member of this alliance will use all power appropriate and at its disposal to repel attacks, including military force," right? It's a much harder commitment saying, "You are committing right now to go down to the mat and deliver absolutely everything."

The decision to not quite do that in Article 5 here is an interesting one. In part, it reflects strategic realities that the United States and other states wanted to have a little wiggle room, were hesitant to fully commit themselves for using force. It also recognized a constitutional debate happening in the United States, and that was very live and was about to become more live in the United States at this time about, well, when can the president pursue military force, take action on his own? And when does he need to go to Congress for authorization? Here, essentially, Article 5 leaves that question open. They say, "You can respond however you deem is necessary and appropriate, including the use of armed force," but doesn't firmly commit the United States or any other state to respond with armed force. And part of that is to account for the possibility that maybe Congress won't authorize the use of armed force in response to an attack by Article 5. And maybe the Executive Branch will conclude that that's constitutionally necessary, although the Executive Branch has frequently suggested that maybe it's not. That kind of legal ambiguity is part of what led to a slightly watered down version of this. Now, notably, this isn't that watered down actually compared to collective defense agreements or mutual defense treaties as [inaudible] the United States engages in, or that many other states engage in. The stronger language I mentioned, if I recall correctly, is from the 1948 Brussels Treaty, is the exception. It was an early model that states generally gravitated away from. So I don't think there's a reason to think that this language is actually a signal that it's weaker, but it does have these sorts of caveats. It has built in flexibility. It is meant to facilitate, and to operationalize and remove international legal barriers for collective action. But it doesn't firmly, hard commit states to do anything along actual--provide any specific type of response, including a military response.

The main thing it does actually obligate, meaning the North Atlantic Treaty obligates them to do is, it's members do, is in Article 4, where it says when one of them views a threat to their territorial integrity or political independence or security of any one of them, all the parties will consult together. And essentially there's a process here where you actually can firmly force the NATO members to consult. That's a firmer obligation. But Article 5 stops a little short of that. That said, the assumption, the understanding has always been that the United States and every other member of NATO is going to take its Article 5 obligations super seriously. And so while it has a range of options about how it will respond, and it has flexibility baked into the international legal obligations, that as a policy matter, the expectation by the Soviet Union and more recently Russiamong other potential enemies of or attackers of NATO members is they're going to come back full force with most likely a military response, most likely a substantial one. And that is what provides the deterrent effect for NATO. That's what makes it such a potent vehicle for the security umbrella is because it has that assumption of intent underlying it. And notably, it's then backed up, not just by the individual military capacity of the United States and other NATO members, but really primarily the United States in a lot of cases, but also by virtue of the fact that NATO members engage in a lot of joint operational planning, a lot of joint coordination, they essentially set up the institutional mechanisms and the joint military capabilities and interfaces and coordination so that they actually can credibly threaten to respond very quickly and very effectively to a military threat. And that is all part of this architecture in here, but the hard obligation actually doesn't go quite that far.

Tyler McBrien: Right. So let's set aside for a second the obligations of a member. And let's say, for example, that a former president who becomes president once again, I won't name names, decides that it's actually less trouble to withdraw from NATO entirely, therefore releasing the United States from these obligations. Is that possible?

Scott R. Anderson: So this is a point of legal debate, but I think the answer is yes. And I actually don't think there's much doubt about it now, although we'll get into some nuances around this. The Constitution says nothing about how the political branches of government, Congress, or the president withdraw from or exit from an international agreement. To enter into a treaty, it says the president needs to get the advice and consent of two thirds of the Senate. Although notably, there are actually other types of international agreements that the president enters into with just the approval of Congress, like a majority of both chambers, or sometimes on his own authority if it relates to an issue that the president has kind of exclusive authority over.

Tyler McBrien: And just to cut in really quick, Scott, I'm curious if there are any historical theories as to why--it seems like a pretty significant oversight to put a provision in the Constitution of how to enter into treaties, but not not to exit from them. Are there any theories there in the historical record?

Scott R. Anderson: It's a fair question. And the Constitution has a lot of these gaps and a lot of holes. They didn't anticipate every sort of solution. And we have statements from the framers about how they thought this was going to work. But there was a little disagreement there as well. Alexander Hamilton in, I believe it was in the Federalist Papers, if I recall correctly, strongly suggested that this is a joint power, something the President and Congress have to agree to together. Thomas Jefferson, in his Manual for the House of Representatives, if I recall correctly, said essentially, "This is actually a power of Congress, only Congress can supersede a treaty once it enters into force. The Senate advice and consent is a different way of establishing the law, but only Congress can supersede it and reverse it and remove it." And it is well-accepted that Congress has the legal authority to supersede treaties and international legal obligations through the last-in-time rule that Congress can enact laws and even if a treaty was in place that was contrary to it, the later-in-time statute replaces that, takes its place.

So that was the operational assumption for a lot of American history. Up until the beginning of the 20th century, almost every treaty withdrawal had some congressional involvement. How that looked varied a lot. Sometimes it was in advance, full congressional authorization. Sometimes it was advanced Senate authorization advice and consent. Sometimes it was after the fact, sort of ratification of Executive Branch action. Kurt Bradley, I'll note, a law professor at the University of Chicago, has written kind of the authoritative historical account of this in the Texas Law Review about 10 or 15 years ago that I recommend to folks. And documents this historical practice with Kurt's usual precision and eloquence.

Around the turn of the century, the 20th century, this begins to change, and it's part of a broader change in the beginning of the 20th century, and then massively accelerated after World War I and particularly after World War II. The Executive Branch just starts asserting a lot more authority over foreign relations and foreign affairs. And that includes treaties. And presidents start just withdrawing from treaties on their own authority. And Congress doesn't really challenge them over it. And the exact where the line sort of gets drawn shifts. There begins to be this expectation that this is something the president can do because he just keeps doing it and Congress doesn't object and no one objects, and in effect, these treaties are withdrawn from. Foreign governments don't sit and scrutinize U.S. constitutional law to determine when treaties with them are abrogated or taken away, that actually international law says, "Well, you can take the word of the head of state or the foreign minister of foreign governments and you can treat that as authoritative, even if there might be underlying constitutional issues." The bar for an underlying domestic law constitutional issue invalidating international legal obligations or consent is incredibly high and generally not applicable in the view of most international legal scholars. So what that means is the president says we're withdrawn. Nothing forces the president to reverse or change that opinion or that statement domestically. Congress doesn't do anything to reverse it. And eventually treaty partners say, "Okay, the United States isn't in this treaty anymore."

And so by the modern era, by the time we start getting these restatements of U.S. foreign relations law, which are the most useful authoritative statements put together by legal scholars and practitioners of how the law works in these various areas, the consensus view is that the president can exit treaties where he is authorized to do so by the terms of the treaty itself or by international law. So treaties often have provisions that say, "You can withdraw in X period of time by doing Y, by notifying the other members in writing," something like that. And then there are background rules of international law that say, for example, if there's a material breach by another treaty partner, a treaty partner may be able to suspend some of their treaty obligations or they may be able to terminate the treaty altogether. So the general understanding is the president can exercise those international legal rights on behalf of the United States and doesn't have to go to Congress for that authority or verify it with Congress. There's also the Executive Branch and particularly, the Office of Legal Counsel in a 2009 internal memo, actually, it wasn't even an opinion, it was an internal memo caveating and in some cases rescinding a bunch of post-9/11 OLC opinions that came out in the last days of the Bush administration. They also said, "Also Congress can authorize the president to withdraw from a treaty, potentially even in a manner that violates international law." So there's this, again, this underlying idea that Congress can authorize action that is in violation of international law in a way that the president can't necessarily because the president's obligated by the Take Care Clause to respect law and international law as part of U.S. law.

That's a long way to say that there's no core legal barrier to the president unilaterally exercising the rights that international law provides to exit a treaty. He has to do it consistent with the treaty. So he has to go and say, "Hey I have one year," which is the time window given under Article 13 of the North Atlantic treaty, "I have one year to withdraw. Here's my written notice. And then in a year, I have withdrawn. I can't cut it short earlier than that." But In effect, that is a power that's entirely up to the president to exercise, so long as Congress has not enacted a contrary provision. And that's the big caveat around this authority that often gets overlooked.

Tyler McBrien: And just to quickly follow up on one of those points, to be crystal clear, some of the allies' failure, perhaps, to meet up to the promise of increased defense spending by a certain time does not constitute a breach of the treaty, which would then enable a president to withdraw from the treaty based on the treaty's terms. Correct?

Scott R. Anderson: I think that would be a very strained interpretation of anything. Certainly not the failure to meet a kind of policy decision NATO states entered into after the fact, right. Like the 2% spending target is nowhere reflected in the treaty arrangements of NATO. And so that wouldn't be a breach of the treaty or a material breach that might warrant a suspension or some sort of other international legal remedy. Now, maybe you could get an argument by an administration intent on finding a reason not to comply with NATO obligations and not comfortable relying strictly on the flexibility inherent in the treaty structure might say, "Well, look, if all these other NATO members have committed to come to our defense and assist us if we're attacked, but none of them have bothered to cultivate the capability to do so, they're in material breach of their obligations." And that might constitute some basis for suspending treaty obligations. I think that's a real stretch for a variety of reasons, not least because there's no kind of clear commitment to maintain that capability that's in the treaty structure, but, you could see an argument along those lines that something similar might lead into. I don't find it very credible, but it's not so far removed that doesn't warrant mention.

Tyler McBrien: Right. So you've mentioned that there currently is nothing on the books which could prevent perhaps a unilateral withdrawal from NATO by president. But recently, as some of our listeners may know, the NDAA had a provision in it called Section 1250A. So first, just what is that provision? And why might everyone at Lawfare call it the "Anderson saves NATO provision?"

Scott R. Anderson: Well, okay. Let me take one step back and deal with the one caveat to that legal position that the president can do this on his own, and then I can go into what this tries to do.

Tyler McBrien: Sure.

Scott R. Anderson: There is this caveat to this idea that the president can withdraw from treaties on his own that is kind of rooted in the idea of what's called the Youngstown Framework, which is a legal framework the Supreme Court has adopted originally from an opinion called Youngstown Sheeting Tube, but actually not binding law there, it's something the Supreme Court has kind of subsequently taken up as persuasive and applied in a number of cases, that basically says when you're dealing with implied authorities, when you're dealing with a case where the president is pursuing an action that isn't clearly allocated by the Constitution, but people agree it's some power somebody has has to exercise in the government the president's authority to take that step varies depending on how closely they're aligned with Congress. Where the president is acting consistent with what Congress has implied or stated it wants to do, or where it's acting where Congress is silent, is kind of passive, the president might be able to make a case that he can do a variety of things.

But when Congress voices opinion says, "No, you can't do this and start setting up structured limits and starts withholding its consent or actively opposing certain presidential action, that shoves it into another category where all of a sudden things that president might have been able to do where Congress was silent he or she can't do where Congress has expressly spoken out against it. In that circumstance, the only time the president is supposed to still be able to act is where he has the exclusive authority over an issue in the Constitution. Meaning the Constitution has given an authority to him so clearly, so expressly, and has said, "This is yours alone and Congress can't touch you on it, can't affect a single aspect of this." And it is quite expressly a very high bar. Although notably in the only Supreme Court case that's ever considered a law that kind of falls in the zone, the Executive Branch did win. It was a 2015 case called Zivotofsky v. Kerry about the recognition of power.

Regardless, my general view--and notably I held a moot court on this a couple years ago with a couple of leading legal scholars, including a former solicitor general, a bunch of other folks who reached, I think, more or less the same conclusion, and Jack Goldsmith, Kurt Bradley has said similar things here in Lawfare and other places among other kind of leading legal experts--is that if you apply this legal framework to treaty withdrawal, I think the Executive Branch has a really hard time making the case that it has exclusive authority to withdraw from treaties because the constitutional text is silent, historical practice is all over the place until the early 20th century. The pragmatic logic of it is not there, the prudential logic particularly when you're talking about permanent treaty exit, if the president is able to suspend treaties, perhaps in certain circumstances, then why do they need to be able to withdraw from them unilaterally, if it's just supposed to be responding to short term policy responses? So I think it's a really hard case to make. I think it's one the Executive Branch would be nervous about making.

So in 2018, the first time Trump started talking about this stuff, I had this idea that said essentially, well, look, if we really, Congress, wants to do something to stop Trump from withdrawing from NATO, the best thing it can do is set itself up to be able to mount the most effective legal challenge to oppose that. And doing that means you have to shove the president's effort to withdraw from NATO into that third category where the president's powers is at its lowest. You have to expressly and explicitly and unambiguously prohibit the president from doing it. And that's what this provision, Section 1250A does, which was actually quickly introduced pretty shortly after I published a piece in Lawfare in 2018, debated in SFRC, adopted by SFRC a couple of Congresses ago, and it's kind of been hanging around for the last five or six years and was just enacted in this NDAA. And what it essentially says is that Congress says, "You are prohibited," meaning the president is prohibited, "from withdrawing from, terminating, suspending, or otherwise exiting the North Atlantic Treaty without congressional approval from a majority of Congress or from two thirds of the Senate that's advising consent. And that the president or the Executive Branch may not use any appropriated funds or authorized funds to pursue any action of that type without that level of congressional permission." And there's some other provisions as well about notification and things like that. The whole idea is that, well, now that Congress has said that, the president's authority to withdraw is much lower than it was before. It's much more dubious. The president now has to show before a court that he does in fact have exclusive constitutional authority over this. And it makes it a much harder argument for the president to make. And so now that this provision is in place, there is at least the Executive Branch has to be willing and able to make that argument.

It's worth noting the Trump administration did make that argument last time they were in office. They were the first presidential administration to make it expressly and publicly. They released it in an Office of Legal Counsel opinion that came out, I think, the day before Christmas or two days before Christmas in 2020, before they left office, where they had previously withdrawn from the Open Skies Treaty in disregard of a statutory provision requiring that they give Congress advance notice of their intent to do so. And they said, "We were free to do this because the president's authority is exclusive. Congress can't restrict it or limit it in any meaningful way." I think essentially that's wrong, but what Congress didn't do and no one else did at that point is legally challenge the president's decision to do that. So we never saw a court pass judgment on whether the president had the authority to do that or not. And the goal of this provision, Section 1250A, is both to put it in the weakest possible position, the Executive Branch legal argument, and then hopefully clear the way for potential legal challenge if the president decides to go ahead anyway.

Tyler McBrien: So I now may ask a bit flippantly, is NATO saved? Or are there situations that you foresee in which Section 1250A could be circumvented or overcome by an Executive Branch who's bent on withdrawing from NATO? What still needs to be done?

Scott R. Anderson: So if you look at past legal challenges of treaty withdrawal, there are three basic justiciability barriers that they have all pretty reliably encountered that have prevented the courts from ever weighing in. And these are big problems because even if you have an unlawful withdrawal from a treaty, if courts aren't willing to reach the merits and resolve it and say, "No, this is unlawful, Executive Branch, you can't do this," then the Executive Branch is probably going to be free to proceed anyway. Because again, the president's stated views to foreign governments is going to be accepted as the official position of the foreign government, by those foreign governments that they will be seen as the United States withdrawing or exiting from these treaties. Two of the barriers, 1250A, I think takes care of pretty handily. One is the political question doctrine, and one is the ripeness doctrine, or this idea that a dispute has to be fully ripe before a court should take it up. These are kind of, the latter in particular is particularly discretionary, sort of passive virtue that courts can apply.

Both have their roots in Goldwater v. Carter, a 1979 Supreme Court decision, which is the only time the Supreme Court has ever considered treaty withdrawal, and they declined to reach the merits on these grounds. And the logic at the time was, the controlling opinion was a narrow one that said, "We don't think this is right," because Congress, at the time in that case, hadn't actually taken any steps to oppose the ending of what was actually the mutual defense treaty with the Republic of China, now Taiwan, at the time. It was being litigated by a handful of legislators who opposed it, but the collectively Congress itself hadn't taken any opposed action. And so, the controlling opinion by Chief Justice Powell, if I recall correctly, said, essentially, "This isn't ripe for conflict. Congress needs to actually do something to oppose this, and we need to see a clear conflict between the branches before it's worth the Supreme Court intervening." And a separate concurrence by Justice Rehnquist said, "Well, a number of us," because I think that had four justices on it, if I recall correctly, "We think this is actually barred by the political question doctrine because we think this deals with political issues that the political branches have to resolve among themselves. Courts shouldn't intervene."

The ripeness doctrine box is clearly checked by 1250A, right? Congress has clearly done something to put its position against Executive Branch and create a clear conflict between the branches. So I don't think ripeness is a problem for a 1250A challenge. And political question doctrine, notably, has actually kind of shrunk and been limited in a way that I think is well-considered by the Roberts court. And another case is a different Zivotofsky decision from 2012. They said, essentially, "We don't think the political question doctrine applies in a case where a statute--or a president is purporting to act in violation of a statute on a constitutional basis," basically where there's a clear conflict between the branches. So the same sort of clear 1250A, if you take that kind of shrinking of the political question doctrine seriously, and I think the Roberts court does I think gets you around political question doctrine concerns as well once you get the springboard.

The third barrier that a lot of these challenges have run into that was not an issue in Goldwater but has been an issue in subsequent cases is standing. This idea that it's not always clear who is affected by a treaty withdrawal and then who has the ability to sue over it. Some treaties provide funding and do other things that obviously individual private organizations or individuals will be affected in a way that they can sue over it. I don't think NATO is clearly one of those. And maybe certain U.S. nationals with relatives in Europe might have a standing to sue. Maybe certain service members might, who affects their career potential. You can think of a bunch of hypothetical plaintiffs that might have standing to sue, but you don't know whether they will actually exist in the real world when a withdrawal happens or if they're going to be willing to take on the burdens of litigation, right, if they're going to be willing to do something like that. So the proposal I originally articulated and the version that was originally taken up by the Senate said is that we're going to go one further., We are actually going to authorize litigation on behalf of Congress, because if there's one party that is clearly injured if a president withdraws from NATO without his permission, it's Congress, because it would be violating 1250A, it would be ignoring what Congress says is its own constitutional role in treaty withdrawal, and we'd be bypassing any debate about it. That provision was actually dropped out of 1250A before it was adopted. So right now there's no preauthorization for litigation.

I think that's the biggest gap in the armor currently for NATO withdrawal. If you really are serious about defending NATO, you need to have somebody positioned to challenge a withdrawal from it. I think Congress is the best position to do that, at least reliably, without knowing the specific circumstances of the withdrawal and whether plaintiffs might be available and prauthorizing it would be a valid step. And notably, it's not too late. Congress as a whole could still do that through additional legislation. And notably, both the House and the Senate have at least a very colorable legal case based off recent decisions in the D.C. Circuit that each individually might have standing or would likely have standing to challenge this, at least in part, because it is not just a violation of 1250A, would be a violation of, among other things, the Appropriations Clause because they withheld appropriated funds from being used for that purpose. An Appropriation Clause violation the D. C. Circuit has seen as something that either chamber can sue over potentially.

So my hope is that one or both chambers, either together as Congress or individually, will take up this effort and put in place a resolution to authorize litigation, preferably before this happens, to signal to the Executive Branch, "Hey, we're serious, we will fight you on this," and to deter them from ever doing it. I don't know if we're ever going to get there or not, but that's kind of the last step to be taken before, by Congress, before you can truly say, "We've done everything we can to defend, to try and stop the United States from exiting NATO altogether strictly on the decisions of the president alone.

Tyler McBrien: Right. So deterrence tactics from Congress to ensure deterrence tactics for NATO. Out of curiosity, do you have any theories or ideas of why this provision was taken up now after hanging out for a bit, as you mentioned? Is it the obvious context that you laid out at the top of the conversation of land war in Ukraine and all of these other factors, or do you have any other ideas?

Scott R. Anderson: I do think it's much more mundane than that. It is an unusual step for the House to take in particular. The House, remember, turns over every two years. Every two years, it's a new House. They have to adopt their new rules. And so it might be viewed as a little bit strange by the House to say, "Well, we are going to commit ourselves to a position that a future House may not agree with." I don't think it's legally prohibited. I think they're legally able to do that. And there's parallels you can draw to other forms of legislation. My sense is that this is a novel step. This isn't something Congress had done before, even though I do think it's legally feasible and that folks in the House were just a little uncomfortable with it because it's such a departure from their practice. I think people in the Senate kind of had a similar reaction because it is unusual to lock a commitment or authorization to litigate something into legislation this way. But I think folks in the Senate were able to get over it because the Senate is a kind of enduring body. They're used to authorizing things and having it carrying over beyond two years to future Congresses. And so my sense is that people in the Senate ultimately got over that. kind of intellectual barrier, but people in the House didn't.

That said, even if they can't get over these barriers, they can't come to the agreement on authorizing something through legislation, they can still do it individually. So the House could adopt a House resolution and then re-adopt it every two years, or they could amend the House rules potentially, even to say, "Hey, we're going to preauthorize this particular type of litigation." That'd be controversial. It hadn't been done before, but I don't see a reason why they couldn't, even though it would be a pretty novel step. On the Senate side, I think there's even more flexibility for the Senate to be able to say, "We're going to pass a resolution authorizing this," and that it's something that will endure until the Senate chooses to rescind it. And again, because you have that Appropriations Clause standing argument, among other standing arguments that the Senate might be able to deploy, I think that gets close to providing a pretty credible threat of a credible legal challenge, even if it might not be quite as strong or airtight as if Congress as a whole had authorized it with legislation.

Tyler McBrien: And shifting the conversation just slightly, the North Atlantic Treaty is not the only treaty to which the United States is party. It's not its only legal obligations, international legal obligations. Everything we've been talking about so far in terms of these legal questions, do they apply fairly broadly across the board to other treaties, security arrangements, or are there specifics, is there a uniqueness to NATO that we should clarify here?

Scott R. Anderson: No, I think these same barriers apply at a minimum to all other Article II treaties, meaning treaties entered into through the advice and consent process. And I think, frankly, they probably even apply less legally controversially to congressional executive agreements, meaning international agreements entered into by virtue of congressional authorization. Those are ones where clearly Congress plays a much stronger role, so if anything, they have a better argument for saying, "We have the ability to restrain exit from these international agreements." In terms of Article II treaties, I think these same arguments would apply. And I think it's a model Congress could consider for other treaties they really want to preserve that they're worried a particular president might be willing to exit in a way that they don't agree with, whether it's the UN Charter or other core foundational international treaties. This was a point of concern by both Republicans and Democrats, actually, in Congress during the last Trump administration because it threatened to withdraw from a variety of agreements and did take steps to do so, including, for example, the World Health Organization during the global pandemic. And so, this is a toolkit I think Congress could use more in a broader range of cases, just NATO has been the one that has the clearest political consensus around it, and, frankly, has seemed like it's the focus of ire by former President Trump at a moment when it's particularly critical.

Tyler McBrien: So, Scott, what does Section 1250A actually fix? And what, I think, more to the point, what does it not fix? What are the broader problems here that this provision can't address or doesn't address?

Scott R. Anderson: So again, this really just addresses the question of treaty exit. And I do think that's important. This provision has gotten talked down in a lot of the media coverage of Trump's recent comments as being less significant. And I don't think that's entirely fair or might be a little too short-sighted. What this provision does is it helps to ensure the United States will be a continuing part of the North Atlantic Treaty Organization. And that means that even if you have one president who may be questionable in his credibility in engaging with it, that other actors in the government, other actors in Congress, other places will still see that the United States has an international legal obligation. And importantly, that obligation will persist past that one individual and will still exist for the next inhabitant of the White House who may take it up and take it much more seriously.

 So it's important to preserve that fundamental architecture. And we know that that is something that President Trump has suggested in the past he's willing to exit and is even interested in exiting it. His formal national security advisor, John Bolton, himself somebody who's not friendly to a lot of international alliances, but likes NATO generally, at least in a lot of contexts, has said he thinks Trump is dead set on actually doing it. So I actually think it's really important to the long-term stability of NATO and the general North Atlantic security architecture that served the United States and Europe very well in the post-World War II era.

One thing it doesn't do, though, is it doesn't solve the immediate Trump problem. Because, as we noted, Article 5 has a fairly open ended scope in terms of what it commits anyone to do. Even if it were tighter on its commitment, it's not clear what exactly Congress or anyone else could do to force President Trump to act on it in a particular way. Because most of what the North Atlantic Treaty deals with is the use of military force. And in the U.S. legal system, our constitutional system, the president is commander in chief of the armed forces in the military and makes sorts of tactical decisions. And it's very hard, the barriers, the constitutional barriers of arresting that authority away from them are most likely insurmountable. It is very unlikely that Congress could pass a law and force the United States to use military force in a way the president did not want to do. That wasn't the case in the Articles of Confederation. That was actually the way it was done. You would appoint commanders in chief multiple, right, the legislature would, but that's not the option. We moved away from that as we moved towards the modern constitution, the actual U.S. Constitution, and that has left us in a situation where Congress has its own war powers, its own authority over the use of military force, but they're much better suited to restraining it than compelling it. So Congress can cut off authorization, can cut off funding, can do a lot of other things to restrict how the president may choose to act, but is not very well suited to compelling the president to act. And that's a real problem for NATO or any treaty alliance. And the reason why Trump's statements are real concerning and are going to keep being concerning for Europe, even if 1250A stays on the books and gets expanded in the ways I just mentioned about litigation authorization.

There are other things Congress might be able to do. In particular, Congress has the control of the purse strings, and that means foreign assistance as well, and security assistance for that matter. The Executive Branch often plays with this a lot, and there's often a strong argument that the Executive Branch and presidents should control foreign assistance, should control how money is doled out because it's so closely related to U.S. foreign policy. That often makes a lot of sense from a policy perspective. And there are reasons why Congress often gives the Executive Branch a lot of control and sway over that, but it doesn't have to. And we saw during the first impeachment of former President Trump, the Ukraine impeachment, we saw this exact issue come into play. A big part of the impeachment was over the fact that former President Trump had refused to give funds to Ukraine that Congress had appropriated for Ukraine and had acted in excess of the fairly substantial discretionary authority has to adjust and delay those fundings. And it had gone beyond that, even in the ways it tried to hold up and condition that assistance on a variety of actions, including some that seem quite inappropriate to many relating to [inaudible] and the Bidens and things like that.

That legal argument is going to come to the fore again, because, perhaps, you will get a Congress willing and intent on authorizing security assistance to Ukraine and a White House that's not interested in doing that. If you hit that scenario, that's going to be another real constitutional debate. I think it's a constitutional debate Congress wins, but Congress really needs to set itself up very carefully to win it. And that means setting itself up to litigate these challenges, to fight the constitutional fight, to do it on a timeframe that the Executive Branch can't just delay, and ultimately get its policy goal of not providing this assistance by delaying it through litigation. In other words, it really requires Congress to start both legislating and preparing to litigate as a much more strategic actor to win the inner branch struggles in a much more concerted way and in a way that isn't through the usual process of kind of informal accommodations and negotiations between the branches. Because when you don't have a counterpart in the other branch exercising good faith on those debates, they end up just being time-sucks. You've really got to be willing to fight it out. And so that's going to be the difficult question a future Congress might well face in this sort of scenario. But it's the one area where Congress really does have a lot of authority that's relevant to these obligations that the president, at least if push came to shove, I'm not sure it could do much to stop them.

Tyler McBrien: So as we near the end here, I want to give you one more opportunity to address some of the more dismissive media coverage, as you mentioned, of the provision of why are we focusing on these technical legal questions with regard to NATO when, as you mentioned, the president as commander in chief, it's a lot harder to compel him to come to the aid and defense of a NATO ally, rather than constraining him or raising the costs from withdrawing from the alliance. NATO, like, like other international security agreements, are often based on trust. And if our allies know that we won't come to their aid and our adversaries know that we won't come to our allies' aid, doesn't it all just fall apart? So why focus then on these technical legal questions? How do they relate to the whole, to the bigger picture?

Scott R. Anderson: As I mentioned, this security architecture, the institutions, the practices that have built up around these treaty structures really matter. Even if the president doesn't agree with a particular action or his instincts don't lend him a particular way, other advisors, military officers, people who are involved in the decision-making process, who feed opinions to that person and advise them on ways to take actions, do take these sorts of commitments more seriously. And importantly, particularly the military is highly socialized to interact with and support its NATO partners because they've been collaborating, coordinating, and doing joint operational activities for decades at this point. So all those things still really matter.

And so I'm of the view that you do what you can do. There's limits to what you can do through politics, but a lot of what you need to do is through politics. And so the first line of avoiding these sorts of problems is electing officials that don't take the viewpoint that these alliances are disposable or don't view European alliances as transactional or kind of net losses on a ledger sheet, instead that take them seriously as saying, "These are in our strategic interests and are the right things to do, and we should stick with them." But failing that at certain key junctures, these legal mechanisms are the things that are in place that allow one branch of government, who may feel differently from another, to try and win the policy fight. And if nothing else, to at least preserve elements of the broader policy that might yet be relevant and might yet be beneficial in the future. So again, so even if former President Trump is re-elected and chooses to abandon NATO, keeping the treaty in place at least means that a future elected President Harris or President Biden or whoever it might be after former President Trump's second term, can come back in and say, "No, we're going to rebuild NATO. We made the case for it." And importantly, doesn't have to go through the process of renegotiating, re-entering and getting Senate advice and consent again, which has proven to be a really, really high bar and a difficult bar to meet for international treaties of any sort moving forward. And that might prove the case again here.

That said, in the end, the United States needs to be realistic about what it can commit to. The truth is that former President Trump represents a political view that's substantial in the United States. A lot of Americans are willing to support leaders that are willing to sacrifice NATO, or at least willing to kind of undermine the deterrent effect of NATO. And that is problematic. And it's a reality that, frankly, European allies need to deal with and think about. I don't think that means that NATO is worthless or not worth preserving. I think actually quite the opposite. But I think it does mean that American leadership needs to be honest with European partners and say, "While we," meaning if it's the current Biden administration, "we might be willing to commit these policies for the next few years. We need to prepare for the contingency that other presidents are going to feel differently and not abide by it," in a way that was not the case 10 or 15, 20 years ago, when NATO was the subject of a lot more bipartisan consensus.

At the same time, domestically, you need to make the political case for why NATO is important. And that's true of both European allies and American supporters of the alliance. But until you persuade and change those underlying political dynamics, Europe needs to start preparing for a future where NATO may not be as secure an umbrella as it has been in the past. And that probably does mean increasing its defense spending, increasing its own interoperability, strengthening its own military capability so it can defend itself for the simple reason that the NATO commitment, for reasons that really are beyond the control of any single president or of any particular Congress in the United States, the NATO commitment and the United States' central role in it just isn't as airtight as it has been for the last several decades, and that's a new reality that everyone just needs to take into account.

Tyler McBrien: Well, Scott, thank you so much for joining me and discussing NATO.

Scott R. Anderson: My pleasure. Thanks for having me.

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