Hillary’s Misguided Space Arms Control

On Jan. 17, Secretary of State Hillary Rodham Clinton issued a press release announcing the administration’s decision to work with the European Union on an International Code of Conduct for Outer Space Activities. The possible consequences are great and include creating a destabilizing strategic environment, surrendering American dominance of the ultimate high ground and violating the Constitution.The administration is right to be concerned about activities in space. China’s successful anti-satellite test in 2007 spewed tens of thousands of pieces of debris into space that every country now has to work to avoid. (This caused an international outcry, even in the absence of an international code of conduct.) Then, in 2010, there was a collision between American and Russian satellites. Technical guidelines between individual countries would be useful.

However, in agreeing to work on the EU international code, the admin- istration is walking down a dangerous path and could cause major and far-reaching problems worse than those we already face. The first is that although its expressed purpose is to inspire responsible activity in space, it likely would force the U.S. military and intelligence community to behave in ways contrary to U.S. interests, which is the height of irresponsibility. The administration’s Joint Staff wrote in the public iteration of its assessment of the draft EU code: “if the United States were to make a good-faith effort at implementing the requirements of the draft code, there could be operations impacts on U.S. military space operations in several areas.”

Adding to national security concerns, the code is broad and does not provide specific ways to implement its goals, which are, according to a State Department public document released the same day as Mrs. Clinton’s statement, to “help prevent mishaps, misperceptions and mistrust in space.”

According to Jeff Keuter, president of the George C. Marshall Institute, “A code of conduct or norms without practical insight into how to behave consistent with said code or norms is meaningless, at best, and, at worst, open to misinterpretation and misperception, which is exactly the kind of destabilizing outcome the U.S. wishes to avoid in space.”

Advocates of the code constantly insist it is not legally binding and would not infringe on the United States’ right to self-defense. Given the admin-istration’s penchant for leading from behind, the middle or anywhere but the front, it is impossible to paint a scenario in which the Obama administra-tion, after agreeing to negotiate a formal code, would then withdraw from it, deeming it bad for national and even global security.

What if the United States deems an action for example, intercepting a rogue satellite using our missile-defense system, as we did in 2008, to be in our interest but other signatories to the code think it violates the code? U.S. missile-defense systems intercept outside the Earth’s atmosphere, meaning space, putting them squarely in the “space military weapons” category. Few would argue that intercepting a missile headed toward the United States would be anything but self-defense. But what about the U.S. intercepting a missile headed toward an ally or an overseas American base? Some countries might not approve.

Moreover, although compliance might not be officially binding for the United States, once the U.S. government agrees to the code, the military, intel-ligence community and even private companies would be forced to comply.

Another problem is that the administration intends to sign up the United States for these new restrictions with-out the approval of Congress. Understandably, this has Republican members of Congress concerned. Sen. Jon Kyl of Arizona, Sen. Jeff Sessions of Alabama, Rep. Michael R. Turner of Ohio and Rep. Joseph J. Heck of Nevada sent a letter to the president Jan. 17 outlining their objections.

The letter says the code of conduct “could establish the foundation for a future arms-control regime that binds the United States without the approval of Congress, which would bypass the established constitutional processes by which the United States becomes bound by inter-national law.” Should this or a future administration determine the United States should agree to yet another arms-control agreement this one control-ling U.S. action in space Congress must be consulted and approve it if it is to take effect.

A broad arms-control initiative based on the EU code of conduct and implemented without the consent of Congress will trade big problems for devastating ones.

Rebeccah L. Heinrichs is an adjunct fellow at the Foundation for Defense of Democracies.