Editor’s Pick
AUGUST 23, 2008 10:52AM

Biden & Star Wars: The "Biden Condition"

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reagan sdiIn 1987, Joe Biden stood up to Ronald Reagan's attempted increase of executive authority in interpreting what a treaty means, and tried to stop the development of the Strategic Defense Initiative, also known as "Star Wars."

The US and Russia had signed the ABM Treaty in 1972, and now Reagan wanted to build his Star Wars. Senators said that this would require amending the ABM Treaty, but Reagan countered that all that was needed was a "reinterpretation."

When opponents pointed out that the ratification hearing on the Treaty in the Senate did not support this reinterpretation, the Administrated cited a record of secret negotiations to support its reinterpretation!

Biden was like, "wtf?! You can have a secret shadow treaty that the Senate approves without its knowledge when it ratifies another treaty." So Biden introduced a resolution known as the "Biden Condition."

Biden attempted to limit the possible meanings of any treaty to "what the Senate understands the treaty to mean when it gives its advice and consent." 

The Senate added this condition to the INF Treaty. But after signing that treaty, Reagan was all, "um, no" on the Biden Condition.

After much legal and political wrangling, the Executive Branch conceded that a secret treaty cannot exist because the Senate cannot give its constitutionally mandated consent to something it knows nothing about. The Office of Legal Counsel of the DOJ (yes, the same Office of Legal Counsel one responsible for the recent Torture Memos) issued an opinion stating that the president "could not reach a secret agreement with the other party that substantially modifies the obligations and authorities created by the text of the treaty submitted to the Senate, and then seek to use the secret agreement as a basis for actions inconsistent with the text of the treaty."

Bottom line: Biden stood up to expanding executive power and against the Star Wars program, and he won. Yay!

This post was sourced from Stephen Dycus, et. al., National Security Law (4th ed. 2007).

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LeC wrote: Biden was like, "wtf?!...

I think he has the perfect expressive face for a serious wtf...which is ok with me.

Thanks for this reminder LeC. Yay indeed!
I'm kind of a big fan of Mr. Biden, I'm not sure why, and I'm not really into his "strange" race-related comments. So, I think this VP pick is great.
Thanks for sharing this. I did not remember it at all. He must have repeated "wtf" an awful lot the last 7 years. Regrettably, without as much effect.
It's interesting to me that many paleo-conservatives and liberals are on the same page when it comes to executive power. I recently heard an interview with a conservative who said that at this point the Constitution is basically a "dead letter." For many years the president has been able to wage wars around the world without any act of Congress. And the use of "signing statements" by Bush effectively nullifies certain pieces of legislation that the Congress has passed.
Let's put aside whether this is an accurate portrayal of Reagan's stand on the treaty and the legitimate legal question about a president's authority to change a treaty, and get to the point that is more relevant to today's Biden--that he opposed a policy that c0ntributed mightily to getting the Soviets out of Afghanistan, bringing about a reduction in warheads for the first time, and liberating Eastern Europe without bloodshed. Reagan changed US policy from detente to defeat of Soviet expansion and tyranny and succeeded. Biden was against the change of which SDI (Star Wars) was a key instrument. Neither in the Cold War nor on the question of Iraq was Biden an innovative or incisive thinker. Choosing him for VP closes the case on whether Obama has vision and the audacity of hope. He does not.
Um, tell me, please, what the vindication of the "Biden Condition" accomplished other than making a point of order in the dance between the legislative and executive branches (one that has, by the present day become completely meaningless and ignored itself)?

Did Star Wars not proceed? Did Reagan not operate an entire shadow government and get away with everything he wanted to get away with? Have not some of the very same people to whom Biden must have made his wft comment in 1987 been actually running the show for the past eight years?

Skeptic Turtle is pleased because Biden will be a good "attack dog" in the campaign. Well, yes. There will be barking and gnashings of teeth, perhaps even some foaming at the mouth - all of which will sell newspapers and internet advertising and be good for ratings. But please forgive me if I call "all-bark-no-bite" on Joe Biden.

Apparently to have Hope is audacious indeed.
Lonnie, is Hillary very "bite" and not just "bark"? It's hard to say. What I find nice about SBidey is that he is a trained lawyer, and at least he stood up for the law. That's better than most lawyers in the last 8 years.

Who would you have picked over Biden?
Wallace, it is naive to believe that Reagan actually intended to crush the USSR. The Republican party and those who finance it profit best in an environment of constant war. Reagan escalated the Cold War to the point where the military industrial complex was producing as if there was a hot war, but there was no hot war. It was the best of all possible worlds -- American girls and boys are not dying, but there is a common enemy, and that fear feeds the machine. The proxy war in Afghanistan was another way to sustain this Cold War conflict.

Toppling the USSR was really an unintended consequence. The Repugs, as we all now know, spent the next 11 years looking for a new "common enemy," and upon finding one, have used it for all it's worth.
MB, 90% of these f*ckers are trained lawyers, but what has that gotten us? I applaud Biden's standing up to Reagan on a point of procedure, but it was just another act in the grand kabuki theater that DC has been, maybe forever, definitely since Reagan.

Who would I have picked? Well, if I'm Barack Obama and I believe in my message of change and I believe there is a well-spring of desire and desperation among the people for real change, if I believe in my own ability to catalyze the spirit and the can-do attitudes latent in a once-great nation with a history of manifesting things the conventional wisdom said could never be accomplished, then I would find someone smart and talented and young and good-looking like myself, perhaps a trained lawyer (well, of course, a trained lawyer) maybe from the State Department, or the Justice Department, or from some state key to electoral victory, someone only the most inside of the inside would even know of but who would blow away the American people when I introduced her to them, and whose hand I would be proud and confident in raising on the podium next week in Mile High Stadium, and with whom I would barnstorm this country in the next two and a half months to will the people into believing in my message of hope and change and a different way of bringing on a new morning in America.

That's who I would have picked, not a reckless-speaking eight or ten term senator who will make the military-industrial-financial establishment in this country think, "well, maybe we could live with that."
Kaufman...what are you on about?

Oh,I see. We're going over the 'Reagan defeated the Soviets' myth again, isn't it.


Great, powerful empires rarely collapse from external pressures...they almost always collapse from within. The Soviet Empire was no different, and you needn't look any further than the decaying Soviet economy by the 70s...
I like Biden, always have. And as much as I hate to disagree with my dear friend, Lonnie, I'm with MB. He's a very good choice.
I'm looking forward to Biden's tearing McCain a new one with his trademark quips. He dressed-down Giuliani wonderfully in one debate with that famous line about how Giuliani can only utter "a noun, a verb, and 911." He continued in that style yesterday with his comment about McCain's many kitchen tables.

He will make a great attack dog, in a manner that resonates with the workin' class Mericans.