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*Research Service
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OLC: Congressional Notice Period Prior to
Withdrawing from Treaty Unconstitutional
May 18, 2021
On May 22, 2020, Secretary of State Mike Pompeo announced the United States' intent to withdraw from
the multilateral Treaty on Open Skies (Open Skies Treaty), an arms control treaty permitting parties to fly
over each other's territories for security surveillance purposes, to the treaty's parties. But a provision of
the National Defense Authorization Act for FY2020 (FY2020 NDAA) required the Secretary to provide
Congress at least 120-day notice before officially notifying parties to the treaty that the United States
intended to exercise its right to withdraw under Article XV of the treaty. The Trump Administration
disregarded the 120-day FY2020 NDAA notification requirement, however, based on advice from the
Office of Legal Counsel (OLC) at the Department of Justice (DOJ) that the FY2020 NDAA provision
unconstitutionally intruded into presidential prerogatives to execute treaties and conduct diplomacy.
Withdrawal from the Open Skies Treaty became final on November 22, 2020. OLC released its full
opinion on the provision in December 2020. This Legal Sidebar discusses the NDAA provision,
summarizes the OLC opinion, and suggests issues for Congress to consider. For more information on the
Open Skies Treaty, see CRS Insight IN 10502, The Open Skies Treaty: Background and Issues, by Amy F.
Woolf.
Section 1234(a) of the FY2020 NDAA
Section 1234(a) of the FY2020 NDAA (22 U.S.C. Q 2593a note) provides that
(a) Notification Required.-Not later than 120 days before the provision of notice of intent to
withdraw the United States from the Open Skies Treaty to either treaty depository pursuant to Article
XV of the Treaty, the Secretary of Defense and the Secretary of State shall jointly submit to the
congressional defense committees [Committees on Armed Services and Appropriations of the
Senate and the House of Representatives], the Committee on Foreign Affairs of the House of
Representatives, and the Committee on Foreign Relations of the Senate a notification that-
(1) such withdrawal is in the best interests of the United States national security; and
(2) the other state parties to the Treaty have been consulted with respect to such withdrawal.
The provision resulted from a compromise between the House and Senate. The House version would have
prohibited the Department of Defense from obligating or expending FY2020 NDAA funds to take any
Congressional Research Service
https://crsreports.congress.gov
LSB10600
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govedjg0001&div=1&collection=&method=preview&ext=.png&size=3)
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