Lawfare Daily: A Big Week for Ukraine Agreements with Eric Ciaramella, Anastasiia Lapatina, and Scott R. Anderson

[Introduction]

Anastasiia Lapatina: So this was immediately one part of the reaction that was again, another agreement that gives us no real guarantees. That's very weak in rhetoric and uses words like “shall” and not “oblige” and these words like it's U.S. “policy” and not “obligation.”

Ben Wittes: This is the Lawfare Podcast. I'm Benjamin Wittes with Scott R. Anderson, Eric Ciaramella, and Anastasiia Lapatina.

Eric Ciaramella: Ukraine did stop the Russian offensive in its tracks, but the Russian offensive always had more limited objectives, which was to scare the population of Kharkiv, force people to leave, and then force the Ukrainian general staff to make tough decisions about the allocation of personnel along the front.

Ben Wittes: Today we're talking Ukraine, peace summit, the security agreement between the United States and Ukraine, and so much more.

[Main Podcast]

Eric, I want to start with an overview of what's happened over the last couple weeks. We had a big peace summit in Switzerland. Without the Russians, we had a major G7 financing announcement. We had a U.S.-Ukraine security announcement. How should, in the highest altitude sense, how should people understand what's been going on in the war and in the diplomacy and international machinations around the war?

Eric Ciaramella: Yeah. So I would say, the last few weeks have seen some pretty big announcements in terms of Western support for Ukraine.

And that comes after many months of pretty gloomy perspectives, particularly before Congress voted in April to approve the U.S. Embassy in New York. So I would say, the $61 billion supplemental aid package, when at the time Ukrainian front lines were under significant pressure throughout March and early April --- Russia had also launched a series of devastating attacks against the Ukrainian energy grid --- and so on the eve of Congress's vote, things were looking pretty dire. It took several weeks for, U.S. aid to start reaching the front lines. But really, after the first few days in early May, when Russia launched a sort of mini offensive around Kharkiv, Ukraine's second largest city, which I think shocked a lot of people, Ukraine was able to stabilize the situation pretty quickly and that stabilization again coincided with the arrival of new U.S. equipment and ammunition, and also important political decisions in Kiev on mobilization of further personnel, which military analysts and officials in Washington and allied capitals had been telegraphing for a while that Ukraine would need to make these decisions in order to start building up a force that could allow for rotations, and a sort of more sustainable, force over the long-term. So the arrival of U.S. aid and the decisions on mobilization contributed to an overall stabilization of the front. In mid to late May and that sort of built momentum towards these really key international events that you mentioned, Ben, where we went into the G7 summit with things looking a little bit better for Ukraine and the G7 managed to produce a few major decisions, which I know we'll talk about in some detail, including the $50 billion loan agreement. And then the United States and Japan as well signed these 10-year security agreements with Ukraine, adding to more than a dozen other ones that have been signed over the past six months with most European allies and Canada as well. These two decisions continue to knit together a little bit more of a longer-term strategic approach to the idea that there's no real shortcut to ending this war now.

The theory of a quick Ukrainian battlefield victory that would break the Russian front and, send Russian forces fleeing and Putin to the negotiating table, that was dispelled last year after the Ukrainian counteroffensive, and then these other theories of quick kind of war termination Senator J.D. Vance's view about Ukraine just needs to come to the table and negotiate a deal and then the war will be over. I think it's become pretty clear with Putin's repeated maximalist demands that there's no negotiation to be had. So if there's no quick battlefield victory and there's no quick and easy negotiation, then the only choice you have is to really start investing in a longer term strategy.

And I think that's what the main message from the G7 summit and the U.S.-Ukraine security agreement is on the peace summit. What I would say is that it's a good first step. It's good that it happened. There was pretty strong attendance from a lot of countries. The communiqué itself probably didn't get the sign on that I think the Ukrainians had hoped for, although I'd be really interested in Nastia's view on the perceptions in Kyiv.

Again, I think it's a building block. I think it sets a framework and a venue to continue having these discussions at expert levels, and maybe build towards a second summit at some point when Ukraine is in a bit of a stronger position on the battlefield to bring the Russians into the negotiation, where the Ukrainians are in a position of strength.

So all in all, I would say that, the narrative as compared to March and early April when it was pretty negative, it has started to turn in a bit more of a positive direction, but there's still a lot of work that needs to be done.

Ben Wittes: Yeah, so Nastia what is the view of these events at the highest level of altitude from Ukraine? Is it as upbeat as… Ukrainians are famously not upbeat. Is it as is it as upbeat as the Italian American?

Anastasiia Lapatina: It depends who you ask. I think if you ask Zelensky, then he's thrilled. He talks about both of these events, the security agreement and the summit, as pretty much utter successes.

And then, of course, there is a part of the society that tends to view all of these diplomatic things as it's just talk and things that don't matter. And I think the truth is somewhere in the middle, starting from the peace summit Eric was right to say that it's good that it happened.

And I think that sums up the general overview and the general opinion of the policymakers and just intellectuals here in Kyiv. I think pretty much all of them agree that this was a huge diplomatic task on the side of Ukraine. The summit took months, I think nearly a year, to organize and made a war which is pretty impressive.

And there were also a lot of hurdles along the way, right? So again, as Eric mentioned, Ukraine is not necessarily in the best negotiating position right now. And also in the months leading up to the summit and in the weeks, especially China started to really trying to sabotage it. They said they're not going to show up, which in itself is pretty bad because Ukraine really wanted and needed China there.

Russia, of course, wasn't invited, which played a role. I think with some of the non-Western states who really believe that Russia is essential to any of these negotiations. So in the last few weeks before, before the scheduled date, Zelensky was like traveling all over the world, trying to encourage all of these states like Argentina, for example to come to the summit.

So it was a lot of work. I think some analysts would say that this was the single biggest diplomatic event in the history of independent Ukraine, right? Because Zelensky says there, there were 101 attendees, which I think is wrong because there were something like 92 states. I might be wrong, but the Zelensky's administration counts organizations and European attendees, for example, as like separate kind of entities, even though it was like one European delegation.

So they're trying to get to this pretty hundred attendees number, right? So it's really good that it happened. It was a lot of work, and everyone is grateful to Ukraine's diplomats for that. There were a lot of entities from the so-called global south, although the term isn't perfect.

There were Chile, Argentina, Ecuador, Dominican Republic, and much of others which was good. Some of them didn't sign the final communicate though, which also some analysts pointed out that okay, we got these states to come. We got to talk to them about our vision of peace, but did we really persuade them? That's a question.

Then some other people said that okay, they didn't sign anything, but they were still there. And considering that Russia and China were really trying to pressure their friends on the global stage to not show up and to sabotage this as much as they could, the fact that, for example, Armenia showed up says a lot in itself and we should be grateful for the fact that these countries showed up. So there's somewhat of a debate about just how big of a success this was But I think everyone agrees that it was a pretty big deal

Ben Wittes: And what was the sort of strategic objective of holding a peace summit, right?

Anastasiia Lapatina: So it doesn't, Russia's not there, so it's not actually peace negotiations. It's not actually about ending the war yet.

Ben Wittes: So you get a hundred countries together. First of all, what did the final communique say? But secondly, what was the Ukrainian objective in holding this?

Anastasiia Lapatina: I'll actually start with the second point that he asked.

It leads to the first one. In the very beginning of the war, back in the fall of 2022, Zelensky announced his kind of vision of how to end this war. Ukraine's peace formula as they dubbed it. And that was really important because after Russia's full-scale invasion of Ukraine, all of these various countries started suggesting their own version of how to end it.

And none of these proposals really aligned with what Ukraine wanted and with Ukraine's interests. But Ukraine didn't offer any alternatives and until it did at the G20 summit back in fall of 2022 and basically there are 10 points and then Ukraine started holding all of these different gatherings to discuss and to get as many states on board with this plan as possible, even though the plan is very maximalist and it's like the most Ukraine could ask for, right? And nobody really thinks that this is exactly what Russia would ever agree to, but that's how negotiations work. You ask for a lot, to be met somewhere in the middle.

Ben Wittes: These are the principles under which Ukraine would like to settle the conflict.

Anastasiia Lapatina: So this would be Ukraine's ultimate success if all of these points are met. And so the peace summit was about this peace formula. It was about getting as many states as possible on board with this. Understanding with this, like Ukrainian understanding of how this war should end.

And that's the big, broad strategic vision, but then also it's just about communications and new contacts and diplomacy with the states with which we really haven't communicated much ever in the history of independent Ukraine, like the states and the so-called global south.

So I think that's why it was organized, and it's reflected in the final communique because the final communique addresses three kind of actually non obvious topics, I'd say one is on basically nuclear energy and nuclear security which is of course in the relation to the Zaporizhzhia nuclear power plant that's occupied by Russia right now.

The second point is about food security. And the third point is about POWs, prisoners of war as well as people who were deported and kids that were kidnapped by Russia. And those three points are a part of that 10-point Ukrainian peace vision, philosophy, whatever they call it. So basically, Ukraine couldn't get a hundred states on board with its entire super maximalist plan.

So it narrowed it down to the three most kind of basic, let's get food to Africa kind of points. And let's not be Chernobyl kind of points. And yeah, so that's what happened. The final communique has these three points of agreement that any use of nuclear energy must be safe and that global security depends on the uninterrupted manufacturing and supply of food products.

And, Ukraine should be able to export its agricultural products and that all prisoners of war must be exchanged and returned home. So like a big swap of all prisoners in Russia to all prisoners in Ukraine. So 84 states and organizations signed off on that at the end of the summit.

I think two countries since then said that they're removing their signature. I think it was Iraq and Jordan. And then also some organization and states added on their signatures, even though they weren't present at the summit because Ukraine did it in a way that like this communique is open for anybody to sign if they wish, even if they weren't present at the event. Yeah that's pretty much it.

Ben Wittes: Scott, give us this is wonky stuff but a 10-year security agreement is number one, not a treaty, and number two, not membership in NATO. What does it consist of and why does it not have to go to the Senate for ratification?

This is a question that some Lawfare readers, listeners will instinctively know the answer to. But for those who are not treaty nerds, how is this different and what does it consist of?

Scott Anderson: The answer may not be what a lot of people expect, because I actually think this is a fairly novel and new agreement.

If you look back at U.S. practice, particularly around this question of where the line is on article two treaty versus an executive agreement, this appears to be, and I think that the White House has been Pretty straightforward about it saying that this isn't actually an international agreement.

They see it as legally binding, at least some of its provisions. There's a lot of provisions in here that use non-binding language. Many of them do use binding language, including the key withdrawal provision, the key security commitment provision, which I'll get to in a second. But it was just concluded by the president.

There has right now no stated intent that I'm aware of, to submit it to the Senate for advice and consent, or to seek congressional ex post ratification through legislation. Which in theory, the Biden administration could still do if they want to but right now that's not there and it's not built into the agreement.

Usually when you have that expectation, it's written into the agreement saying entry into force will take place after the parties conclude their domestic legal processes, something to that effect. And that's not in here. It says that it enters into force upon signature. The reason why this is novel.

Is that there has been a longstanding gentleman's agreement between the Senate and the executive branch that security commitment, security guarantee treaties like NATO, like our agreements with the Philippines and Korea these agreements that mostly date back to the 1950s and the 1960s, that any agreement, and sometimes in some cases earlier than that, I should say any agreement like that has to, has traditionally been said that has to go toT\the Senate for article two advice and consent. That means two thirds of the Senate has to sign off on the exact line between what sorts of international agreements this requires in advice and consent, and which ones can be entered into the president on their own, or for that matter, with Congress through bicameral approval, as opposed to through the, through two thirds of the Senate is very unclear. It's a matter of practice and consensus between the branches. But it's been pretty consistent on this particular issue. This and human rights treaties are the two big lines the Senate has maintained. And this budges up against that because this does essentially say something pretty similar to what's in the North Atlantic Treaty, which it says that in attack on Ukraine and Ukraine sovereignty will immediately trigger a binding obligation on the United States to consult on how to respond.

And it specifically discusses economic sanctions measures as a response, but it notes that response may also include military responses. That doesn't sound like a strong commitment. And Jack Goldsmith our colleague here at Lawfare wrote a piece pretty critical of this agreement for using such wishy-washy language.

But in substance, that's actually pretty much the commitment the North Atlantic treaty makes for NATO members too, in Article V. It doesn't say they will automatically go to war for each other. It actually just says they are committing to consult and that they will provide what they view as an appropriate level of support and response.

So this is not that far off from that. What I suspect is different here, which those other agreements do have, is that it does not say that an attack on Ukraine will be treated as if it's an attack on the United States itself, which is language that's in the North Atlantic treaty and a lot of those older treaties.

That is language that suggests consent to collective self-defense and an intent to exercise collective self-defense. It's a lot closer to that hard, binding sense saying we can and will act on this, but without firmly committing to do it in a way that would raise constitutional questions in the United States where at least major wars are, traditionally understood to require congressional consent. This doesn't quite cross that line. Instead, it says that any threat to either party's sovereignty will be of grave concern to both parties. That's language similar to what's in the Taiwan Relations Act, for example, and that we see in other contexts. There's a 2023 agreement with Bahrain that used similar language and was similarly a step beyond what I think we've seen before.

So in that sense, this is a strong agreement in that we haven't seen this sort of agreement been used to do before. What does that mean in terms of hard obligations? Not that much, although it's not that different from the North Atlantic Treaty requires. And, how much of a deterrent message that sends is a bit of an open question.

That's much more, in my mind, contingent upon the political intent behind the commitment, not its legal form or language. Some people will say under a future Trump presidency, for example, the North Atlantic treaty may not have much deterrent effect because people won't believe President Trump intends to act on whatever obligations it imposes.

Ben Wittes: So Eric and Nastia, in that order, describe for us the perception of this agreement in the United States and Ukraine, respectively. Scott mentioned that Jack Goldsmith had written critically about it as weak. How is it being perceived in relevant circles in both countries?

Eric Ciaramella: Certainly, in the Biden administration, there was a lot of work that went into crafting this agreement over almost an entire year.

The negotiations began last August and were suspended during the period when Congress was unable to vote on the supplemental aid package resumed in April and then were quickly concluded in time for the G7 summit. And, within our interagency system, I think there was a lot of serious effort put into crafting commitments that were geared towards a kind of credible long-term strategy to build up the Ukrainian armed forces.

There's this operative phrase, credible defense and deterrence capabilities, which again, the administration is using as the organizing principle for long term support. When you have an agreement like this and Scott knows it, we don't just issue agreements like this every day. They're underpinned by a huge amount of policy and legal work inside the government.

And it's usually just the tip of the iceberg. From this agreement stems a huge amount of planning and resourcing discussions at a certain amount of detail. Much of which will be classified and shared with Ukraine and the allies, but not released publicly. So when you look at an agreement like this and you say, okay there's no specific systems, weapons systems, or there's no specific commitment here and there, again, this is a broad policy framework, which is asserting for the first time, the administration's kind of longer term vision for the future of the Ukrainian armed forces.

And like I said, there's a lot that will go, supplemental agreements, intelligence sharing, all of these different things that are going to remain classified and discussed between the governments. So I agree with Scott. This is a pretty serious document when you look at the intent of the Biden administration.

Now the reaction: Scott mentioned Jack's piece which I think identified some key weak points, including the fact that there's no guarantee that Congress is going to fund any of this administration or the next administration's resourcing requests. There's no guarantee that a future president Trump wouldn't simply withdraw from the agreement.

You actually saw some congressional Republicans make the same critique. It was Representative McCaul and Turner, I believe, that put out a statement, saying that the agreement was extremely weak and non-binding. It's funny because for it to be binding, they would have to vote on it.

Essentially, I read that as an invitation for the administration to begin a discussion with Congress codify portions of this or develop a long-term resourcing strategy with Congress's buy in, through an ex post congressional executive agreement, or something like that, in order to get Congress on the record.

So the administration's critics can't have it both ways. They can't say it's super weak because it's non-binding and then refuse to engage with the administration if the administration comes with a good faith proposal to codify this agreement. So I do think there's room there to make it stronger.

Ben Wittes: So Nastia, I could see this agreement playing one of two ways in Ukraine, and I suspect there are people on both sides of this. One way is to look, this is a big win. We get substantial U.S. security guarantees. Locked in for the long term. being a very long term in the context of the current war. The other way, with all of the backdrop of support that Eric just described, the other way is to say, it's not NATO membership, right?

And this is some pacifier that the U.S. administration has stuck in our mouths like we're a baby to prevent us from crying about NATO membership and, we're not taking our eye off the ball here. How is this playing?

Anastasiia Lapatina: I think it's leaning more the latter, that Ukraine is definitely still looking at NATO membership and it's somewhat unhappy with the scope of this agreement.

So it's paradoxical because, of course, the U.S. is our most important ally. That's unquestioned, right? Ukraine probably wouldn't even exist right now if it wasn't for all of the U.S. lethal support that we've got since Russia's full-scale invasion. But then also what's on a lot of Ukrainians minds is 2014 and the fact that there was extremely little support when Russia first invaded Ukraine and annexed Crimea and part of Donbas.

And also something that I think probably no American is thinking about, and that's the Budapest Memorandum which is when Ukraine gave up its nuclear weapons in turn for, as is written in the Ukrainian version of the memo, guarantees for security. Even though in English it's assurances, in Ukrainian it means guarantees.

And again, it's funny because I think Americans really don't give a second thought to this memorandum by now, but Ukrainians talk about this pretty much constantly, including Zelensky. So when this new agreement was released, I think within an hour of its release, I was talking to somebody who referred to this agreements as Budapest memo 2.0. So this was like immediately one part of the reaction that like, oh, again, another agreement that gives us no real guarantees, that's very weak in rhetoric and uses words like “shall” and not “oblige.” And these words like it's U.S. “policy” and not “obligation,” everything that Scott and Eric already brought up that some of the language is watery, because that's just the nature of how many of these deals work. But of course, again, if you ask those who worked on this deal, they're going to say it's an amazing success. Zelensky people in his administration diplomats worked on it. They're going to say it's a big success and people highlight some important points.

I think one, for example, is that it says that the commitments outlined in the deal and the deal itself is intended to support Ukraine's efforts to win today's war, which I saw many people refer to as like very strong wording, that it's not just an end to hostilities and some sort of peace, whatever that might mean, but actually Ukraine winning the war.

Ben Wittes: Yeah but just to clarify this point, there was a lot of anger in Ukraine when Biden used to say, “we're in it as long as it takes,” but didn't use the word win, right? And there was a lot of criticism. This language that sounded very strong and committed from an American perspective, from a Ukrainian perspective, lacked this really important syllable.

And so I think it's interesting to me, that's a phrase that would not stand out to an American reader, but it is interesting that's resonating to Ukrainians,

Anastasiia Lapatina: Right. Because for us it's not just about ending the war, it's the terms on which we end it. And that goes right back to our previous discussion about the peace summit and why it was needed.

It was to present to the world the terms on which we wanna end the war. So this ties neatly into that. Of course I think the biggest fear is that if. Trump wins, which a lot of people in Ukraine, I think, are scared of that. And it's something that gets talked about a lot right now is that he's just going to pull out of the deal and reverse the course.

And people constantly talk about how Trump said that he's gonna end this war within days. And Ukrainians really see this as kind of selling out Ukraine to Putin or saying that we need to give up some more territories that Russia already occupied. So there is that risk. But then again, as Eric already mentioned, this deal is of course not like a piece of paper that's going to fix everything that's outlined there, right?

There is going to be like dozens, if not hundreds of additional agreements that stem out of that. And as far as I understand, I think it's been specified in the deal that if, even if Trump pulls out of the deal, all of those other agreements remain in place. He's gonna need to go and cancel every single one of them, which I'm not even sure that's possible once that starts its work.

So there's definitely a lot of fear and a lot of mistrust and a lot of let's not repeat history. Let's have something that actually guarantees something that's more than a consultation kind of thing. But then, and again, it can also go both ways because the agreement talks about NATO a lot, actually.

It talks a lot about Ukraine being on the path to NATO and Zelensky said that this deal was like the first kind of, not the first, but like one of the main steps of Ukraine towards NATO that solidifies this path. And in the deal it says that Ukraine, is going to work on bringing its military to NATO centers, et cetera, et cetera.

So again, it's good that this deal was signed just like the summit. It's good that it happened. It's good that we signed this, but could it be stronger and could Ukrainians be happier? Of course.

Ben Wittes: All right, so Scott, we happen to have here in Scott Anderson, one of the world's experts in withdrawing from international agreements, which is, I have to say, a super specialized point of expertise---

Scott Anderson: But a relevant one these days.

Ben Wittes: Yeah, but you don't listen to Lawfare content for the generalism. All right, Scott, Trump is elected. He comes into office and he wants to get us out of all of these international entanglements. He gives the George Washington farewell address as his first inaugural, with some American carnage thrown in there and a lot of talk about borders, and he sets to work dismantling our international agreements. How are the Ukrainians differently situated from the NATO members under this agreement?

Scott Anderson: I don't know if they're that differently situated from NATO members, but it's worth noting that there's been a lot of press coverage about this agreement saying Trump can just immediately disregard it. And I actually don't think that's quite fair or accurate.

The agreement itself, on its terms, says either party can withdraw with six months advance notice, right? Those are the rules under which the treaty allows either party to leave. And the Trump administration, during its prior term in office, actually stuck by those rules. It exited a lot of treaties, but it did so in a way that's consistent with international law in most cases.

There is one, the World Health Organization, there was a genuine international legal question. There are some domestic law questions that related to legislation Congress enacted that doesn't exist today. For this agreement, if this were approved by Congress, it would raise a whole ‘nother bucket of domestic law questions, potentially at least.

But here, the Trump administration actually abided by that. So that suggests there is this six-month sort of window. And as Nastia noted, it also says in there that lots of implementing agreements, and it's very clear this is a framework sort of arrangement under which lots of implementing agreements will be concluded on specific details. They have to be for it to have any meaningful impact. Those will continue in force on their own terms. What this all means is that it actually really does raise the political costs of exiting and disregarding them entirely, even though it is within the president's authority. The president has to take an announcement.

He has to, in theory, stick by the agreement for six months. Now, it doesn't work that way. They have many hard commitments in it so he could slow roll and simply stop cooperating with things to some extent, but there's a limit how far you can push that while still sticking by at least the outer parameters of what the agreement requires.

And importantly, once you get all these agreements and things happening at the operational and working level. It provides a lot of momentum that tends to continue among working level people in the bureaucracy, particularly with the military and particularly on the security assistance front.

Especially when you're talking about in security assistance front, this will involve contracts and funding, some of which go to private companies. In the United States, a lot of which goes to private companies and arms manufacturers that have a vested interest in this. So it generates a bunch of reliance interests and then sets up institutional barriers that make exit require some affirmative action and take on some political cost for a future Trump administration or any other administration that would want to exit this arrangement before its 10-year expiration.

That thought means they can't. They can. They absolutely can, particularly after six months. But it means it is not cheap or easy for them to do and it sets up a lot of incentives in place to try and continue at least some level of cooperation. Probably substantially less than is what is there now, but, some level of cooperation, at least until the administration decides to take on those big costs and nix the whole thing entirely.

That is what the Biden administration was trying to do here. If they could have bound a future president to do more, I'm sure they would have. But this is about all you can really do with a sole executive agreement like this. But it, insofar as they are trying to bind a future administration's hands, they have, to some extent, limited, loose binds.

But there is definitely some sticking power here, I think.

Ben Wittes: All right, Eric, I want to go back to a comment that you made early on that we are seeing the effects of the U.S. aid package in the stabilization of the lines. I had a conversation last night with the ranking member of the House Armed Services Committee, Adam Smith, and he said very bluntly that the intelligence he was seeing suggested what he described as a dramatic sort of stopping in their tracks of the Russian offensive as a result of the delivery of artillery shells.What do we know about the distribution of 60 billion dollars in aid is a lot of weapons, it's being titrated in of course. Wut what do we know about what's come in? And how specifically can we trace effects to the passage and implementation of that aid package?

Eric Ciaramella: Yeah. First of all, it's not actually 60 billion in weapons. There was a significant economic component to it. And I think the military aid was something on the order of 50 billion of which a significant chunk of that was for long term contracts for new production.

Again, things that will come online and then be sent to the front, over a period of time, including new ammunition, but then also new weapon systems and so on. And then some of the funding is for current government operations. to pay for U.S. military stationed in Europe, to fund ongoing intelligence support and then to backfill U.S. stocks. So it's not like there's some kind of light switch with, 50 billion in military aid that then gets all shipped to the front. What I will say is that, my understanding is that the ammunition has made a difference and it has started to reduce Russia's artillery advantage, which, on the eve of Congress's decision was pretty significant 10 to 1, maybe even more in certain parts of the front, and Ukraine has been able to reduce that, but it's not going to gain kind of parity at this point because the Russians are still really outpacing the Ukrainians in part because of all this North Korean ammunition that they've received. We also haven't talked about the Putin-North Korea deal.

Ben Wittes: Oh, we're going to.

Eric Ciaramella: That's a little bit of counter programming to the U.S.-Ukraine security deal.

But all that is to say, Russia has pretty significant artillery, ammunition advantages.

Ukraine's just trying to close the gap. The Russian offensive in Kharkiv did do is it forced Ukraine to pull some of its units from Donetsk oblast, which is Russia's main military line of effort. And that's their main objective over the course of, the remaining calendar year.

And it forced the Ukrainians to put those units around Kharkiv to defend there. And again, in that respect Ukraine did stop the Russian offensive in its tracks, but the Russian offensive always had more limited objectives, which was to scare the population of Kharkiv, force people to leave, and then force the Ukrainian general staff to make tough decisions about the allocation of personnel along the front.

The other thing we haven't talked about is the policy decision by the Biden administration to lift the restrictions of U.S. weapons against Russian territory, specifically around Kharkiv. Jake Sullivan did clarify that the restriction is lifted against any kind of Russian staging or weapons on Russian territory

that's being used to directly support an offensive into Ukrainian territory. So to me, that would mean if the Russians were planning something against Sumy or Chernihiv, but it doesn't mean, Rostov and areas that are deeper behind, occupied territory. Again, to me, I'm not entirely sure why the administration is splitting hairs over these things, but it seems a way to gradually boil the frog and kind of mitigate escalation risks.

I think probably my prediction is that within the next few months, those restrictions will be lifted too, but we'll see where it goes.

Ben Wittes: Or lifted in practice, if not.

Eric Ciaramella: Yeah. Exactly. And that decision, though, I think it would have been helpful for the Ukrainians to have had that decision as soon as the Russian offensive against Kharkiv started, it was like too late, but it's been you know, better now that they have that restriction lifted. And I think it will be a deterrent for the Russians going forward.

Anastasiia Lapatina: I think that sums up a lot of what the U.S. and Ukraine negotiations over these things are. It would have been better if we've had all of these things years ago, but I guess it's good that we have them now at least.

Ben Wittes: Nastia, there's a social media account on threads that I follow by a woman named Kate Boguslavskaya, and who is a Kharkiv resident, and she was, I sent you this at the time, but she was saying that since the U.S. aid package was passed the civilian population of Kharkiv is just dramatically safer which she attributes to it. She's not a military analyst, but there's just less bombing and more effective air defense. Is that a general perception or is her sense of it unusually optimistic and eccentric?

Anastasiia Lapatina: It's definitely true that the situation around Kharkiv, as Eric already said, stabilized, that it's definitely not as hot as it's been a month ago when pretty much every day there were these vicious attacks against civilian infrastructure in Kharkiv and it was just terrible to see.

And of course the offensive in Vovchans'k area. Yeah, it's definitely calm right now. I'm just not sure how well we can trace why that's actually happening and whether it's a factor of Russia being locked down because of its own mistakes and its own lack of resources or if it's because of U.S. aid specifically. I've been told by, general staff and other sources of mine that yes, definitely U.S. aid made a difference and the artillery advantage by Russia is just not as stark. Sure. But still, they're all very quickly to point out that it's not enough. And nobody I've talked to told me that, yeah, we're now good. And we can, I don't know, keep stabilizing the front or, of course, launch an offensive. That's a whole other talk. But pretty much everyone who I asked this question to says that sure, it helped us a little bit.

But the West supposedly really underestimates how much Ukraine actually needs. And it's like, when somebody says that, oh, they've pledged a million shells to Ukraine. One person told me,

Benjamin Wittes: That’s like a month of Russia.

Anastasiia Lapatina: Oh, it's like a week, it's like a week or two weeks. I think. Yeah. Like one, one analyst told me that that's how much Russia uses in a week or two.

So when some country pledges a million shells to Ukraine and everybody parades around that Ukrainians are sitting there okay. How, for how long are we going to use that for? I've also pointed this question, Ben, to the minister of defense and they've sent me this like two-page thing that basically all talks about how many more ammunitions and F-16s and Patriots and everything we have. Like it was close to a shopping list and like a dire plea for help. And then there was one sentence in the two pages of yeah, it helped us a little bit in terms of artillery, but please send us more.

Ben Wittes: So no, this is again, one of the great divides. And you see this when Biden and Zelensky meet. There's always this tone from the U.S. side of “look how much we've done,” and the numbers are immense, and the effect is immense. But from the Ukrainian side, the reaction is, and we still need x and y and z and. And there's a real, I think of it as a creative tension, but I think there's also a little bit of mutual frustration in, in, in that aspect of the relationship.

All right. Before Eric has to hop off, let's talk about North Korea because no discussion is complete without Kim Jong Un. While the world gathers in Switzerland, the Kremlin, the great leader of Russia shows up in Pyongyang. What's this about?

Eric Ciaramella: So Putin has really been forced to make friends with a lot of unsavory countries since he launched his full scale invasion of Ukraine and got cut off basically from Western markets, has had to rely a tremendous amount on China for revenue from Russian energy exports, for the import of key technologies to facilitate Russia's military reconstitution. But this pivot to North Korea is really particularly ominous and Putin has really thrown in his lot with Kim Jong Un. The most remarkable thing about this is this security kind of agreement that they signed, which kind of pledges, it's a little bit unclear, but I was reading the text this morning.

It pledges something similar to the U.S.-Ukraine security agreement, but maybe a little bit closer to NATO where, if either country is attacked, the other one will provide military aid. It's a bit unclear whether it means, “we'll send our forces” but certainly some amount of mutual aid. But already it's creating, ripple effects in the region that are probably going to be a net negative for Russia over the long term because, again, there's very little that North Korea can do for Russia beyond the artillery shells that it's been providing. But already you've seen the South Koreans come out this morning and say we are going to reconsider our policy on not supplying weapons directly to Ukraine.

And of course, South Korea is a military industrial power house in terms of armored vehicles,

Ben Wittes: They can produce a lot of shells.

Eric Ciaramella: And the shells, I think there's substantial reporting suggesting that the South Koreans have been supplying some amount of shells to the Ukrainians through kind of third party arrangements and whatnot.

But if South Korea goes in fully, they've signed these huge deals over the past several years with countries like Poland to produce new tanks and whatnot. So they really can substantially bolster Ukraine's war effort if what Russia and North Korea have done prompts them to do a full pivot.

It'll also bring the South Koreans and Japanese closer, which is something that the Chinese are going to be looking at warily. It's a bit unclear to me whether Putin got Xi Jinping's sort of assent or acquiescence in advance to sign this deal with North Korea. ‘Cause the Chinese in the past have been a little bit wary of Russian-North Korean dealings.

We'll see. Again, it's just, I think it's just a huge symbol of kind of how far the Russians have fallen in their sort of image of themselves and their self-imposed isolation from the West in having to rely on countries, rogue regimes like North Korea, like Iran for drones and so on, but I wouldn't go so far as to take some of the official talking points from, say, the Biden administration that says it shows Putin's desperation.

I don't know that it was a desperate move so much as a pretty calculated move to show that we're in the solidly U.S. adversary camp, and we're gonna do everything we can to, turn up the heat on the United States and its allies and partners. We'll see where this flows.

But I do think that this will, again, produce some real changes in Asia Pacific security going forward.

Ben Wittes: All right. So Scott, speaking of super wonky international agreement issues there is and I'm afraid of losing all our listeners with this question a novel financing mechanism to support the Ukraine non-military and military budgets in, as part of the G7 meeting.

Anastasiia Lapatina: It's hugely important. Everyone, please don't go.

Ben Wittes: Explain to us why anybody's eyes shouldn't glaze over and why we should actually pay attention to this.

Scott Anderson: So it is, I think, in my opinion, the most interesting thing to come out of the recent G7 meeting and perhaps the most significant because I think it represents a breakthrough in transatlantic agreement on ways to support Ukraine beyond direct bilateral assistance, which was always going to be a limited source and is hitting up a lot of political barriers at this point.

And that is through a very creative financing mechanism that leans in part on the almost 300 billion dollars in frozen Russian assets the United States and Europe and its allies have had frozen since the 2022 invasion, but not in the way you think. Not as seizing it as a lot of people have been advocating, as Congress actually authorized earlier this year, although only in regards to the 5 billion or so within U.S. control, very limited amount.

But instead as a, using it in a very clever financing structure. What essentially they agreed is that the United States and an unspecified number of other countries, Canada is the only one to give a hard commitment, although Japan and a couple of European states were really considering, are going to participate as members of a loan syndicate, meaning they're acting collectively to extend a number of what are being called ERA loan to Ukraine for a variety of purposes because some different countries have different policies about how their assistance can be used in different ways.

So some will only go to reconstruction, some will be able to go to weapons, things like that. But a number of these loans are going to come forward totaling 50 billion dollars at least but most likely at around 50 billion. That is the amount that the United States has been willing to saying it will back at a maximum that it says Congress has already authorized.

And although it is hoping other countries will join in to be able to limit its unilateral commitment in that regard. And that all of these are going to be loans that are being secured by what Treasury Secretary Yellen described as “windfall profits.” And this is the most interesting part of this, and a detail of the economic things that a lot of people aren't aware of, which is that about 200 billion dollars, about two-thirds of Russian frozen assets, are actually held by one financial institution. That's Euroclear. It is a securities clearinghouse based in Belgium that plays a very central role in global financial community. Euroclear operates under really, really interesting financial terms, very different than most conventional financial institutions, because it is essentially, like I said, a clearinghouse.

It holds assets for a short term, then moves them between different parties. And so it tries really hard not to have any assets on its books. I was actually at an event on a panel with the CEO of Euroclear a couple months ago, and she laid out this interesting contractual argument that I had not been aware of which she said basically that, yeah, because we don't want to be stuck holding a bunch of these assets in the long term, we basically set up an arrangement that incentivizes the states to move them quickly.

So we have fixed terms in which we hold assets as securities, and we move them between different parties, and if they overstay their welcome, they get converted into cash on our books, and we can then take that cash and invest it however we like, and we keep the profits. So when the United States and Europe, and particularly Belgium, froze Russian assets in 2022, Euroclear suddenly had 200 billion dollars to play with once all those Russian assets that were in its custody got converted to cash pursuant to its existing contractual arrangements.

So it has been earning windfall profits to borrow Yellen's term. On the order of three somewhere between two and a half to three and a half or four billion dollars a year for the last two years and is expected to do so for the foreseeable future, contingent a bit on global interest rates. Those have been high the last few years. Maybe slightly lower than what we see in the last the past few years moving forward but a substantial order. So about two months ago, the European Union agreed, we're going to tax these funds.

Euroclear is a Belgian company subject to taxation by Belgium and Europe. We're going to tax them like any other financial institution, and we're going to take the taxed funds, the vast majority of these windfall profits, which Euroclear signed, agreed to this on principle as well, and we're going to send that to Ukraine as biannual payments of a couple billion dollars a year.

Problem with that is that Ukraine needs money now, not in a trickle over the next 10 years. So what the G7 has agreed is that we're going to take all of the stream of assets and we're going to front load it so that the United States and the other lenders are going to provide 50 billion dollars up front and that loan is going to be repaid over the period of that loan, whether 10, 20, 30 years, I'm guessing it's probably along the 25 to 30 year line, by the stream of profits from these frozen Russian assets.

It's a very clever way bridge the concerns Europeans have with seizing Russian assets with the desire to get Ukraine funding in the immediate term. Because the ultimate security behind this is that flow of assets, but then you have to ask what happens if in the next 25 years, those assets end up unfrozen, which is entirely possible because of policy or political changes in the participating countries, because of a variety of terms and conditions.

One possibility is that a peace agreement has worked out between Ukraine and Russia and G7 decides to unfreeze these assets. But they have already done a hard commitment to say, we're never going to unfreeze these assets until Russia pays Ukraine reparations. So in that case what has been alluded to, although I haven't seen the exact terms on this yet, no one has, and they may not be on, put on paper yet, is that there will be an arrangement in place that Ukraine will transfer, assign some of its interest in reparations payments to the lenders, and that the balance of the loan will be repaid from any reparations payments that come in. Then you have to ask yourself what if something happens and these, this money is unfrozen or goes away without there being any sort of peace deal or reparations payments? And that's where seizure comes back in. The U.K. and a number of other countries are supposedly preparing themselves to act as the guarantors of this loan in those extreme contingencies. And I suspect, we don't know this yet, because I haven't heard this said, but I suspect a big part of that picture is them evaluating whether they can seize assets in their custody to balance out that 50 billion and make good on countries that aren't able to eat that cost themselves.

That has been a bitter pill to swallow for a lot of European governments now. But five, ten, fifteen, twenty years down the line, it's much more likely we will have some sort of international legal process that has produced judgments and claims and really allows us to say we don't just widely all agree that Russia owes Ukraine substantial sums, we don't know exactly what because we haven't adjudicated it, done all our usual legal process.

We will have time to do that now. And once you get those judgments in place, it gets a lot easier for countries to swallow in being able to actually potentially take those assets and enforce these judgments against them. This also has the effect of converting what currently would be a third-party seizure on Ukraine's behalf if countries were to seize Russians assets to a bilateral seizure, essentially, because, again, these interests are being assigned to the countries themselves and their financial institutions, and they can enforce it as an offset which is a much more kind of accepted accounting practice and financial practice that doesn't always raise the same sovereign immunity and other legal concerns. It's not clear to me that it shouldn't, but in practice it doesn't between states, and it just is a little bit of an easier step for a lot of European governments potentially to take that they can't take now, but will be able to take down the road. So long and short of is that this really clever financing arrangement has basically bridged this difference in time preferences between European governments and Ukraine and the United States and other countries wanting to line up on Ukraine's schedule where they can advance a lot of these assets without having to deal with the hard questions of seizure far down the road where hopefully they won’t be as hard of questions.

And that's a model while there’s probably a limited degree to which you can continue to rely upon the stream of assets coming from Euroclear, you don't have to rely on that. You could do the same model just on the frozen Russian assets themselves. It might involve a discount to account for the risk and the fact that you're not going to getting these periodic payments, maybe Ukraine will have to take two to one on the dollar, but that still gives a potential huge stream of revenue they can get and that maybe states will be able to forgive that different stuff down the road.

So I think it's a good model that has a lot of potential down the road if they can work out the details, which is what the states are still working on doing now.

Ben Wittes: Alright, we are going to close, but before we do Nastia, there was, I gotta ask you about this. The New York Times ran a dark, ominous story the other day about the end of press freedom in Ukraine and about how there was all kinds of self-censorship, there's spying on journalists through keyholes, there's a sort of syndicate of media organizations that are all acting on one as one to spread the government's message and what's going on?

Are you about to get a knock on the door from the SBU carting you away for doing the Lawfare Podcast?

Anastasiia Lapatina: Not for doing the Lawfare podcast. No, but okay. So NYT does have in Ukraine, at least a reputation of just getting the context wrong and over-exaggerating some things and claiming Ukraine has a far-right problem or claiming Ukraine has this or that problem, when actually it's a minuscule kind of thing. On press freedom, again, Ukraine really does have a press freedom problem right now. I think any self-respected, any generally respected journalist in Ukraine will tell you that. For starters, if we're talking about TV, Ukraine has what's called a TV marathon, which essentially means that all of the main TV channels are united into one stream of news, the TV marathon.

And it's been like that since actually a few days before Russia invaded Ukraine or a few weeks, I forgot now. But essentially since the day that Russia launched this full-scale invasion of Ukraine, Ukraine's TV all big channels have been streaming kind of the same rotation. They figured out the system where each channel takes like a slot of hours and then is responsible for that slot and produces content for that slot.

And it's all just like frontline and political news. So there is no like TV shows, movies, it's just news. And in the very beginning of the war, that was very useful. And the idea was to combat Russian propaganda and to make sure there is one stream of information about what's happening. The idea was to prevent chaos, prevent spread of Russian propaganda and prevent people from going to various wonky telegram channels to, to get information.

And I think there's pretty much unanimous agreement that at the very beginning that was useful and maybe it even worked and it was necessary because it's okay to have some sort of censorship in the times of war, but it's now been how many years, more than two. And now it's unanimous agreement against Ukraine's media sphere, that TV marathon basically outworked itself, outperformed itself.

There have been a lot of issues and criticism around which kind of speakers and analysts are invited to all of these various panels. And there has been, there have been allegations of those speakers, spreading pro Zelensky administration kind of information that there isn't enough opposition on there. For example, our former president, Petro Poroshenko, he used to own several TV channels and those channels with links to Poroshenko, they're not a part of the TV marathon. And there is a very kind of complicated story of why that's not so but still it points to this, again, this idea that if you watch Ukrainian TV, there's not going to be much opposition talk there.

And many people say it's a problem. And in my opinion, it is an objective problem and the TV marathon has to go. There is again another part of this conversation and that's the fact that there have been several really big scandals in the Ukrainian media sphere over the last several months and also years one of them being that the SBU apparently has this office, I think it's called like M office as in like media office that's tasked with pretty much spying on journalists.

And there was this whole thing about a group of SBU state security Ukrainian guys going to this hotel complex where the office of where like basically everyone from an investigative Ukrainian outlet was celebrating, I think it was New Year's or something. And they bugged all of the rooms where these journalists were staying to get some sort of as we say, kompromat on them.

And they ended up getting a video of video guys, not even journalists, video people from the team, I think, smoking pot or doing some other drugs. And they released that video trying to sabotage them and trying to discredit the journalists. And it was a huge deal. The really important point is that it completely backfired and didn't work.

I haven't seen anyone who actually said that the journalists are in fact discredited because they use drugs or smoke weed or anything. Like the second this video came out, everyone was like, whoa, wait a sec. Are we going back to the times of Yanukovych? Like why is there a camera in a private room?

Like, why are we spying on these people? So the whole thing backfired and there was this big investigation about the SBU. Those guys who were spied on, they did an amazing investigation. It's available on YouTube about who exactly was spying on them. They found everyone, they identified everyone who was involved.

So that was really big. And then there's also this ongoing tension and it's been like that since the very beginning of the war, between the government and the journalists, especially when it comes to access to the front line, and the way things are reported in regards to the front line. So there have definitely been some I'd say bad actors or journalists who've broken certain kind of journalistic standards and rules by, for example, during the counter-offensive that ultimately failed in the summer, reporting where certain brigades have moved before it was actually, announced or reported in some sort of official matter, which the government says contributed to that, those, those units being ultimately destroyed by Russia because Russia knew their location. The government actually directly put a link there between the publication of those units, locations and what happened to them.

So that was really bad. And but then on the side of journalists, we are saying that like journalists are not getting enough access to the front line. We're not getting clear instructions on how to get that access. There's this constant kind of tension between journalists who want to report from the front line and the government saying that, oh, you can't go to certain areas because you're going to benefit Russia by publicizing what's happening there, and the journalists saying but we have to do our job, and it's normal practice everywhere in the world for journalists to be embedded and to get access to those areas, to report on civilian lives, for example.

So that contrast is definitely there. But I wouldn't say that saying that Ukraine has a press freedom kind of problem and, this tension exists. I wouldn't say that's an overstatement. It definitely is a conversation that's very active and ongoing right now in Ukraine, unfortunately.

Ben Wittes: We are going to leave it there. Scott Anderson, Anastasiia Lapatina, Eric Ciaramella. Thank you all for joining us today.

Anastasiia Lapatina: Thank you very much for getting us on.

Scott Anderson: Thank you.

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