At a congressional hearing in mid-June, Secretary of Defense James Mattis had something of a cryptic back-and-forth with Sen. Tom Cotton, R-Ark., about allegations that the Russians were cheating on a controversial aerial surveillance agreement called the Treaty on Open Skies.
"Does the U.S. believe that Russia is in violation of that treaty?" Cotton asked Mattis.
"We are meeting on that issue. I have been briefed on it and we'll be meeting with State Department and national security staff here in the very near future," Mattis responded. "There certainly appears to be violations of it, but, you know, I've got to go into the meeting and figure out I've got all the information."
Pressed to elaborate, Mattis said, "There are some areas that have been -- we've been prevented from overflying."
"I think there are some of the other aspects of it. I'd prefer to talk privately with you. But that's one of the clear, to me, violations," he said.
Mattis need not have been oblique about it; the U.S. State Department specified the purported violations in a public report in April. The Open Skies complaints went little-noticed at the time in the U.S. outside the government, but officials in Moscow certainly took note.
The Treaty on Open Skies, signed in 1992 and enacted in 2002, is an extraordinary agreement that permits 34 signatory nations to fly pre-planned missions over virtually any inch of each other's territory with surveillance aircraft and take photographs. The photographs must be given to the nation that was overflown and must be made available to any other signatory country that asks for them.
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The treat popped up in the news recently when some media outlets breathlessly reported that a Russian spy jet had flown over Washington, D.C. -- only later noting that those types of flights are not uncommon.
In fact, as of mid-July, there had been 1,377 flights total under the agreement, according to a U.S. State Department count. The U.S. had conducted 184 missions over Russia, including both U.S.-only operations and joint missions with friendly nations. Recently there was an American-Canadian mission over far north Russian territory in the Arctic Circle in late July, a State spokesperson said.
Russia has overflown the U.S. 66 times by mid-July. Prior to the D.C. flight, Russian aircraft flew out of McConnell Air Force Base outside Wichita, Kansas.
But tensions between the U.S. and Russia over the Open Skies agreement have been building in recent years. The problem, according to the State Department, is that the Russians are trying to limit where Open Skies aircraft can fly in their territory.
The Russian government has set distance limits to flights over the Kaliningrad Oblast, a non-contiguious section of Russian territory squeezed between Lithuania, Poland and the Baltic Sea. The Russian government also denies permission for Open Skies aircraft to fly within 10 kilometers of the Russian border with what the U.S. calls the Georgian regions of South Ossetia and Abkhazia. The limitations, the U.S. says, are forbidden by the treaty.
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U.S. officials also said in 2014 and 2015, the Russians have interfered with Open Skies operations mid-flight, claiming they have to adjust course due to "force majeure" considerations. The treaty allows for deviations under "force majeure," or an event beyond a state's control, but the U.S. says the Russian government has invoked it for reasons like government VIP movements -- actions that are foreseeable and under the Russian government's control.
"The United States is working with our Allies and partners to encourage Russia to return to full compliance with the Treaty," a State Department spokesperson told Code and Dagger. "We remain committed to the successful operation of the Open Skies Treaty, and we will continue to work in concert with all interested States Parties to improve its overall implementation."
In response to the April State Department report, the Russian Foreign Ministry dismissed what it called "stereotyped allegations" and said the Russian government has "repeatedly provided exhaustive replies to these grievances."
Russia says the flight distance limits for Kaliningrad Oblast were introduced properly and still allow for "effective observation."
As for South Ossetia and Abkhazia, Russia is among a handful of nations that recognize those regions as "independent states" rather than parts of Georgia, and relies on a rule in the Open Skies treaty that does not allow flights within 10 kilometers of the border of states that are not party to the treaty.
The Foreign Ministry's statement did not touch on the alleged abuse of "force majeure," but went on to accuse the U.S. of its own violations. Those included complaints over difficulty in observing American island territories and interests, American opposition to more advanced cameras on Russian aircraft and complaints about restricted airspace in U.S.-allied Turkey.
"The United States, while assuming the right to judge other countries' actions, continues to justify the violations of the Treaty obligations by its close partners and allies," the foreign ministry statement says. "We are seriously concerned about the fact that 'double standards' have become a norm for our American colleagues."