December 04, 2019

Taking apart the Cotton/Cruz anti-Open Skies Treaty resolution in the United States Senate

Tom Cotton participates in a conversation
about American foreign strategy
and statesmanship at the Hudson Institute
March 18, 2015 in Washington, DC. (Getty)


I find it difficult to explain how frustrating it is to watch the same stories about the Open Skies Treaty get circulated for over four years, with little understanding in the media, and almost no fact-checking of official sources, while I scream into the void, write long-form explainers, micro-blog, talk about it in podcasts, assist journalists in their research, and do interviews to inform the public about what's going on; all the while the news media is duped by officials trying to kill the treaty with deliberately misleading quotes, omissions, and half-truths. After documenting and publicising information, refuting claims made by politicians, and their favourite think tanks, I have received some good feedback from a variety of people. Some say wow, I didn't know about this treaty - even journalists covering the defence sector, members of the military (domestic + foreign), and government officials appreciate that someone is trying, however futilly, to educate the public about the Open Skies Treaty. I know that to be true, because they've told me so. That gives me hope. I'd like to think I've educated a few people along the way, but here we are, many years later; the same disinformation is making headlines, the Open Skies Treaty is on the brink of being destroyed by the Americans, and the same politicians from over four years ago are still duping the people of the world with their half-truths and flat out lies.

I'm crestfallen, but I'm not beaten.

By following the majority of published news items about the Open Skies Treaty, and asking the right questions on and off the record to  people in the know, I am very familiar with the majority of the alleged violations of the Open Skies Treaty, and some of the violations which haven't been alleged too. Sen. Tom Cotton (R-AR) and Sen. Ted Cruz (R-TX) have tabled a resolution in the United States Senate ( which seems to exploit the disinformation Cotton and his proxies have been spreading for years.

Tom Cotton at CSIS Headquarters July 17, 2017
for a paid speaking engagement about the INF Treaty
I feel like this is shaping up to be a final push before their Republican POTUS is ousted. I think they're in a rush, and I think they're getting sloppy. They're recycling talking points from 2015 and 2016 that don't apply anymore. As time moves on their ammunition is running out, the allegations are being disproven or shown to be untrue. "Violations" keep getting resolved, and despite what they might tell you, diplomacy is working. Other countries, beside the Russians, have also moved to digital electro-optical sensors. I will demonstrate to you that this resolution in the Senate is the latest contrived attempt to kill the Open Skies Treaty by Sen. Tom Cotton (R-AR), and now Sen. Ted Cruz (R-TX). I believe these are the death throes of Cotton's quest to kill the treaty for the interests who lobby him.

The following an excerpts of the reasons cited in the Cotton/Cruz resolution in the senate for terminating the participation of the United States in the Open Skies Treaty.

Whereas the Department of State has repeatedly assessed
and documented in its annual report on Adherence to
and Compliance with Arms Control, Nonproliferation,
and Disarmament Agreements and Commitments, that
Russia is violating the Treaty on Open Skies, done at
Helsinki March 24, 1992, and entered into force January
1, 2002 (commonly known as the ‘‘Open Skies Treaty’’);
Why not take this opportunity to explain the violations to the American people and the rest of the people of the world. The United States Department of State publishes a report every year, a report which is not sanctioned by the Organization for Security and Co-operation in Europe (OSCE), or Open Skies Consultative Commission (OSCC). It is a United States Department of State account, from their view, of how the United States feels other countries are adhering, or not, to arms control agreements. While Americans likely don't want to hear this, there are 33 other signatories to the Open Skies Treaty, meaning there are 34 members of the OSCC, who have monthly meetings in Vienna, where they resolve disputes with diplomacy, and the United States does not have a special role to critique compliance. The compliance report holds no weight internationally, other than being an opinion voiced by the United States. Interestingly, the present chairperson of the OSCC is even American. Are the items that the United States Department of State calls violations, also considered violations by the entire OSCC? I don't know, they're quite tight lipped about that, so it would seem not. We do not know anything about what the 33 other members feel about the American-alleged violations, other than none of them believe the United States should leave. No country has made any statements which echo the Americans' position that they must withdraw from the Open Skies Treaty for reasons of national security. Even domestic American academics don't agree that the United States should withdraw from the treaty. You may wonder why I don't call any of the alleged-violations, just "violations". There is surely conduct that Russia has performed in the past 15+ years of flights that have been violations, but the last two outstanding "violations" are contentious, complicated, and the alleged-violations are significantly less critical than anyone who is trying to kill the treaty wants the public to understand. Amy Woolf of the Congressional Research institute goes over what they mean in her testimony before congress just a few weeks ago; let me allow her to speak for herself.

A snippet of Amy Woolf's written testimony below:

"Concerns About Russian Compliance. The 2019 version of the State Department’s Annual Report on Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments highlighted two areas of concern about Russian compliance with the Open Skies Treaty. The first notes that, while the Treaty establishes a maximum range of 5,500 kilometers for observation flights, Russia has imposed a sublimit of 500 kilometers for flights over its Kaliningrad region. Kaliningrad is a relatively small, but heavily militarized area that is geographically separate from Russia. According to some reports, Russia imposed this limit after an overflight by Poland in 2014 lingered over Kaliningrad and interfered with commercial aviation in the area. While this sublimit does not preclude flights over or observations of military activities in Kaliningrad, it is inconsistent with the terms of the Treaty and an OSCC decision that “precludes a State Party from decreasing the maximum flight distance from an Open Skies airfield.”

The 2019 Compliance Report also notes that Russia has prohibited observation flights within ten kilometers of its border with the South Ossetia and Abkhazia regions of Georgia. This dispute is less about the provisions of the Treaty than it is about Russia’s dispute with Georgia over the status of these regions. The Treaty permits parties to prohibit flights within ten kilometers of independent states that are not a party to the Treaty. While Georgia is a party to the Treaty, Russia has considered South Ossetia and Abkhazia to be independent states since its 2008 conflict with Georgia. Because these regions have not joined the Treaty, Russia has argued that flights cannot approach their borders. The United States and other parties to the Treaty have not accepted this interpretation of the status of South Ossetia and Abkhazia. Russia has recently indicated that it would lift the ban on flights within ten kilometers of the borders with South Ossetia and Abkhazia if Georgia were to accept Open Skies overflights from Russia. Georgia had suspended this access in 2017 and 2018."


(*correction, Georgia has restricted access to its airspace, prohibiting Russian overflights since 2012 per the Georgian Government, a violation itself - reference:

As Amy Woolf notes in her testimony to Congress, these are not core issues, these are fringe outlying issues which do not significantly impede core Open Skies Treaty objectives. This is also a view shared by the RCAF, a representative of which I interviewed in late 2016 about these same violations. I submit to you that framing these alleged violations as huge issues is purely a political stunt, they are not factual, and they are not acting in good faith; which shouldn't be entirely surprising from the likes of Cotton and Cruz.

Whereas, in 2015, Director of the Defense Intelligence Agency, Lieutenant General Vincent R. Stewart, testified to
Congress that ‘‘[t]he Open Skies construct was designed
for a different era,’’ and in 2016, that the treaty allows
Russia ‘‘to get incredible foundational intelligence on crit-
ical infrastructure, bases, ports, all of our facilities’’ and
provides Russia with ‘‘a significant advantage’’;
It is quite remarkable that opponents of the Open Skies Treaty keep coming back to LtGen Stewart, but it's great for me, since his misleading testimony was what motivated me to take on interviewing the Royal Canadian Air Force, to get their view. I'd been interested for years about where the Russian Open Skies Treaty flights were taking place over Canada, because I wanted to see where their flights intersected with my interest in Cold War history, to understand what they were looking at. I had a wild and crazy question in the back of my mind; did Canada have a secret base that they were checking up on? (Spoiler: Nope) but the Russians' paths did uncover (for me) that they visit the former military bases in Northern Canada, as well as current bases, naval bases, and other locations of military interest. But why were they visiting closed bases that were nothin but concrete and rubble? I spoke with a senior officer, off the record, about choosing the location for a satellite downlink, and from what I recall part of the decision was what infrastructure was already there, and that property was already owned by the Government. There's no need to buy new land for military projects, there's lots of minimally used DND land that can handle more than one use. So, the Russians were absolutely right in visiting former military bases, some of which have been converted to prisons or other facilities. They're flying over to get a better look at them, just to make sure. If you didn't know a present-day prison was actually formerly a military base, radar base, or missile launch site, I can only imagine what interesting conspiracy theories could be made up about a Russian-assisted prison break, and flying through restricted airspace above the prison. Because of LtGen Stewart's testimony I filed Access to Information requests (The Canadian FOIA) for all the Russian flight plans over Canada, and I got over ten years of them, proving they are flying over sites of clear military interest, despite the information provided to LtGen Stewart, and in turn to the United States Senate.

I don't feel entirely comfortable embarrassing LtGen Stewart for his comments, because I have reason to believe he was fed a line, several even, by people who had political motivations within or outside the DIA, who were sympathetic or directly acting on behalf of Sen. Tom Cotton. Unfortunately, despite LtGen Stewart's best intentions, he's been made to look like a fool by them. LtGen Stewart testified that the Russians switching from wet-film to digital (an American initiative that had been going on for nearly a decade at the time) was akin to going from Polaroids to 1080P. If you're of the right age, you remember what a consumer grade instant Polaroid picture looks like, and they look terrible despite your rosy memories of your childhood. You probably know what a 1080P video image looks like, which is technically 2 megapixels. LtGen Stewart was portraying that a fuzzy polaroid was equivalent to what the Russians used to see when they flew over the United States (like in 2017), and that the American government had to block ratification of the Russian digital electro-optical sensor which would give them pictures that would now look exponentially better, like 1080p. This is clearly an attempt to portray the change in the their capabilities and level of detail as superior to what it was, and it was quite absurd. If the head of the Defence Intelligence Agency (DIA), who is opposed to the treaty, and has been for the entire length of the treaty, can get away with making such ridiculous statements into the record, without anyone calling him out, I have to wonder what's going on. Fortunately, his testimony provides me with a clear example that anyone with a film camera who upgraded to a digital camera (of equivalent capability) can understand.

Let me digress for a minute.
My dad used to shoot 35mm slide film with a 35mm camera, and I shoot digital pictures with a digital camera now. He took great pictures of fish doing underwater photography in the Bahamas. Those slides (which are still in a box) when blown up on a projector look great, lots of detail, and while my digital camera may give a better picture than his 35mm then, it's not overwhelmingly better - but it's certainly way easier to see, edit, store, etc - it's digital after all. The wet film cameras of the Open Skies Treaty are all treaty-limited in their capability. They can only take pictures of 30 cm resolution, and do so at 3 different altitudes, using different cameras and lenses. It's a high end wet-film camera. The new digital electro-optical sensors (ahem, digital cameras) are equally high-end, but made to comply with the maximum resolution requirements in the treaty. The United States didn't raise the red flag about the German Open Skies Treaty plane and their new digital electro-optical sensor, did they? The switch to digital was an American initiative, that all countries are in the middle of right now. The German Luftwaffe is flying theirs, testing it, right now - or was earlier today. The Russians first deployed theirs for their flights over Europe in 2014. LtGen Stewart's testimony in 2016 was all about trashing the move to digital on the Tu-154M that the Russians use to overfly the United States, and his testimony wasn't compelling to the Obama administration, who approved the digital electro-optical camera in 2016, and it flew over the United States in 2017 - over the White House even (foreshadowing). It then shouldn't be surprising that the Defence Intelligence Agency has an axe to grind, and is still against having a Russian observation plane with 30 cm resolution cameras fly over the United States. The thing is, there's more to the treaty than the DIA. The State Department and STRATCOM are both in favour of the treaty, so are other departments, academics, former and current officials, as well as dozens of other allied nations. The OSCE PA has even said they would like the United States to table their issues with the Open Skies Treaty at the OSCC, and not unilaterally pull out of the treaty. There is no country in the world that believes that it is necessary for the Americans to withdraw from the Open Skies Treaty, and there is no reason to believe anything Rep. Tom Cotton (R-AR) has said based on the years of disinformation he's been spreading.

Here is LtGen Stewart's testimony for you to review and come to your own conclusions. LtGen Stewart is a highly decorated accomplished senior military officer, now retired, with an exemplary career. I think it's unfortunate he was mislead and used in this way by whoever briefed him, as he clearly is not a technical guy, by his own admission and testimony. Because of this, I do not think his testimony can be taken seriously, unfortunately. His testimony was in context of the digital electro-optical sensor upgrade, not just the Open Skies Treaty, and we know now all the FUD being spread about the sensor was just propaganda. The specifications of the camera were fully disclosed by the Russians to the public, and all treaty signatories, including the United States, and all confirmed that the sensor is limited to 30 cm resolution, as Amy Woolf stated in her testimony just a few weeks ago. Any quotes from LtGen Stewart's testimony being used by Cruz or Cotton are being taken out of context, and his cannot be used as an authority on the treaty.

(U) March 2nd 2016  House Armed Services Committee hearing on World Wide Threats

Whereas, in 2016, the Commander of the United States Strategic Command, Admiral Cecil Haney, testified to Congress that the Open Skies Treaty gives Russia ‘‘a capability to be able to reconnoiter parts of our country and
other nations’’;

I'm not sure how Adm Haney didn't notice, but "reconnoitering" parts of the United States, and 32 other countries, is exactly what the Open Skies Treaty is meant to do. We - the American allies who are signatory to the treaty - reconnoiter Russia too, many dozens of times a year. In fact, we can do it much more often if we like; the quotas are renegotiated yearly. Doing so is not objectionable, and raises questions as to what anyone thought the treaty was for if not exactly that. Is his statement true? Yes, Russia does reconnoiter, but it's certainly not a reason to kill the treaty; it's the reason 34 countries are signatory to the treaty. What an incredibly weird justification for withdrawing from a treaty; doing what it says it's supposed to do. His testimony is not a justification to leave the treaty, it's just describing a working Open Skies Treaty mission. We do exactly the same thing over Russia as the Russians do over he United States, and all other signatory countries.

Whereas, in 2017, the Chairman of the Joint Chiefs of Staff,General Joseph Dunford, testified to Congress that ‘‘wedon’t believe the treaty should be in place if the Russiansaren’t complying’’;
Shockingly this is out of context, this quote is cherry picked and cropped, let me correct it.

Dunford's whole quote, in context of Tom Cotton leading questions, was to say at 58:25 "let me (..) make sure we make it clear, we believe on balance that it would be best that the treaty continue to be in place, but we do not believe the treaty should be in place if the Russians are not compliant, but there is a decidedly aggressive diplomatic effort to bring the Russians back into compliance, which we think would be the best outcome"

Tom Cotton cites four (alleged) violations in this September 2017 testimony
(remember this date)

  • Limiting flights over Kaliningrad (that's the 500km sub-limit)
  • Abkhazia and South Ossetia (Georgian breakaway republics; the 10km issue)
  • Chechnya, which in September 2017 was no longer an issue, per the April 2017 State Department compliance report.
    "One compliance concern cited in previous editions of the Compliance Report — a minimum altitude restriction over Chechnya — has been resolved. In early 2016, U.S. implementers observed that Russia stopped including altitude restrictions over Chechnya during pre-mission briefs. On April 18, during the OSCC plenary, the Russian representative confirmed that Russia no longer published altitude restrictions over Chechnya."
  • An altitude limit over (a part of) Moscow, which was also dropped as an issue in April 2017, after it was discovered by the American delegation to the OSCC that other countries have also imposed similar altitude restrictions for air traffic control / flight safety reasons. The issue did not reappear in 2018 or 2019, it's gone for good.
    "Russia’s imposition of a minimum altitude for all air traffic over Moscow, in the region designated as UUP-53, continued and impacted one observation flight in 2016. The United States discussed this concern with States Party in 2016, including Russia’s assertion that the altitude restriction is linked to safety of flight, and it became clear that a number of States Party impose altitude restrictions for reasons of flight safety. The United States, Russia, and other interested States Party intend to explore altitude restrictions as part of a broader discussion of air traffic control procedures and Open Skies Treaty implementation. The United States will continue to monitor this issue closely."

It serves Tom Cotton's interest to overstate the alleged Russian violations, and rounding up by a factor of 2x, reporting alleged violations which had already been resolved and reported as such, publicly, almost 6 months earlier, was not caught by the media.

Tom Cotton continued with his misleading line of questioning asking Gen Dunford if the Russians get more out of the imagery than the Americans do since the Americans have superior satellite constellations for imagery; but this is a truism and has always been accepted as such. There is nobody on the planet with a better satellite constellation for imagery than the United States. That's not a reason to kill the treaty, since it was that way when the Americans proposed and signed the treaty.
It's that way by design, and it's always been that way.

Starting at (57:32)

Whereas the Government of the Russian Federation has recently used the Open Skies Treaty for surveillance of major American cities and infrastructure, includingWashington D.C. and New York City;
...and Area51, China Lake, the Nevada Test Site, RCS sites, ICBM fields, missile testing sites, Cheyenne Mountain... Tom Cotton didn't think an enterprising OSINT afficianado with a knack for tracking planes would examine the flight paths of many past flights, at great detail, and debunk this; they're not flying over anything that doesn't have a military use. I've done this for American flights, and Canadian flights, alleging that the Russians are using their flights to survey anything that we wouldn't survey ourselves is completely untrue. I also interviewed the RCAF about this, and the RCAF on the record confirm there is nothing the Russians are flying over that we don't fly over ourselves. Suggesting they are flying over "critical infrastructure" in some sort of improper manner is not any sort of violation of the treaty even if it were true, which it is not. The flight paths of the flights, and where they take pictures, can be determined with OSINT, or if the FOIA system was working correctly, could be asked for directly, since the Russians provide all signatories to the treaty a list of where they took pictures at the end of their flight over the United States. All treaty signatories know what the Russians took pictures of, so it's completely disingenuous of Cotton to claim they are spying on critical infrastructure in two ways. Factually, they are not. Per the treaty, they're allowed to. We are also allowed to, and we do take pictures of their infrastructure if there is a need. "Infrastructure", for example rail, is of military as well as civilian use, and knowing what's on the rail cars is in the interest of the Russians, as well as being completely legal under the treaty.

Whereas the Government of the Russian Federation has installed advanced digital technology for use in Open Skies flights, enhancing its surveillance and espionage capabilities; Whereas Government of the Russian Federation has limitedand at times outright denied access for surveillance flights by the United States and other countries;
This is a two part-er;
a) The switch to digital was an American initiative from a decade ago, everyone in the treaty is moving to digital. I suspect Cotton realized this, and sped up efforts to kill the treaty, but this item is already out of date and proves their initiative to kill the treaty is disingenuous.
a1) Tom Cotton may not want the public to be aware that the Germans have already installed their digital electro-optical sensor, and are in the middle of testing it - hopefully it will be flying next year.
a2) The United States (you may have heard of them) has already installed their digital electro-optical sensor and is testing it too; maybe ready for next year, only 7 years behind the Russians.
b) Outright denied access to what? When? There isn't enough information here to make an argument, let alone expose it for the propaganda that it is. When planes arrive n country they table a flight plan, that flight plan outlines what they want to overfly, if there are flight safety issues or weather, the flight plan is changed - it's a negotiation. It's extremely rare for a flight to be denied completely, but it did happen between Russian and Turkey, when Turkey wouldn't give access to the areas Russia wanted several years ago. No Open Skies Treaty flights have been denied over Russia, that's disinformation.

Whereas Congress has repeatedly sought to limit implementation of the Open Skies Treaty in response to Russian treaty violations, including in the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232);
He's got me there, he's flooded Congress with disinformation for years, and have made several very poor misinformed decisions. In the last NDAA it even brought up the risks of SAR, and no plane has SAR certified, or installed. Sure the treaty allows for it, but nobody is doing it, or even has any plans to do it - it looked like it was added to the NDAA to promote fear.

Whereas the United States Government has developed and deployed technology so that it does not gain significant additional intelligence from participating in the Open Skies Treaty; 
Welcome to 1992! The United States has had superior spy satellites which render part of the Open Skies Treaty flights redundant in terms of *new* information, but it isn't just about *new* imagery for most countries either; Open Skies Treaty flights serve as a manner to gather unclassified imagery of things they may already be privy to through national technical means. Resulting Open Skies Treaty imagery can be presented at the UN, NATO, or NORAD in an unclassified setting. American TOP SECRET//SI//TK//NOFORN 6 cm resolution imagery needs to be handled more carefully, but 30cm res can be carried in a binder, or even emailed to someone in a slide deck. It provides imagery that can be shared with any partner nation, even if they do not have an intelligence sharing agreement in place.

Whereas participating in the Open Skies Treaty costs the
United States hundreds of millions of dollars in unnecessary spending
Again, this is just disinformation by the Cotton cadre. All nations, even the United States, benefit from the Open Skies treaty to different degrees, filling in gaps as well as enabling unclassified intelligence sharing; and considering the American OC-135s are ~60 years old, I think they've been paid off a while. It's time to buy new planes, but you don't need anything bigger than the new German plane, which is a recycled Airbus A319. A repurposed KC-10 would do just fine as well, and be a heck of a lot more efficient; I hear they're having some growing pains anyway and might have a spare or two.

Please watch the following testimony by three expert witnesses on the hill and dispel some of the rumours that have been getting spread by Cotton and his cadre for over 4 years.

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