Over at Balkinization, Sandy Levinson laments the comments of Matthew Bryza, Deputy Assistant Secretary of State for European and Eurasian Affairs, who is quoted as as saying that "[Georgian accession to NATO] is what is going to happen now. Georgia is going to accelerate its march toward NATO and, I hope, to an action plan in December." Levinson writes: "it is yet another sign of our defective Constitution that Mr. Bryza is suggesting that a lame-duck President . . . would view himself as having the legitimate authority to bind the United States to the defense of Georgia's territorial integrity (at least if one takes Article V of NATO seriously)." Levinson speculates that "any decision to expand NATO would in fact require consent by 2/3 of the Senate," but, he continues, "we never should have to reach that point in the first place."
But is Bryza suggesting that the President has the legitimate authority to bind the United States to Georgia's defense? On its face, Bryza is not suggesting that the President has unilateral authority to allow Georgia to accede to NATO, nor is he positing that the President can unilaterally bind the United States to any agreement on Georgian accession to NATO. The meaning of Bryza's statement becomes clear with an understanding of the contemporary mechanisms of NATO accession. Accession is a complicated and quite political process, which (not surprisingly) takes years to accomplish. It involves several steps, including the creation of a Membership Action Plan (MAP), "a NATO programme of advice, assistance and practical support tailored to the individual needs of countries wishing to join the Alliance." At its April 2008 summit in Bucharest (declaration here), NATO Heads of State and Government "agreed . . . that [Ukraine and Georgia] will become members of NATO. . . . [and that the creation of a] MAP is the next step for Ukraine and Georgia on their direct way to membership. . . . We have asked Foreign Ministers to make a first assessment of progress at their December 2008 meeting." Bryza, it would appear, was quite explicitly referencing (and, of course, endorsing) the North Atlantic Council decision of earlier this year; he was not creating new policy. At most, Bryza was encouraging Georgia, despite recent events, to continue with its desire to join NATO in accordance with the process previously set out by the Alliance.
The limitedness of Bryza's statement is made even clearer with an understanding of the international and domestic processes for formal accession to NATO. Once a State has accepted the negotiated conditions of membership, the current NATO parties must formally invite that State to accede to the treaty. Article 10 of the North Atlantic Treaty requires "unanimous agreement" of the parties before any new State may so accede. Though the method of providing that agreement is not specified, the practice, since Greece and Turkey joined the original NATO States in 1952, has been for the NATO parties to agree to a protocol that must then be approved by each in accordance with their national laws. (Ratified protocols can be found here.) For the United States, the practice has been that accession protocols are considered treaties and, thus, require the Senate's advice and consent. (The Senate currently has pending before it Protocols on the accession of Albania and Croatia.) Indeed, the Senate has quite explicitly expressed its view that this procedure is required. (See, for example, Exec. Rpt. 108-6, page 8.) These formal processes - international and domestic - make clear that Georgian accession to NATO is hardly the unilateral decision of the U.S. president.
Now, the current administration's push for NATO accession by Georgia (and Ukraine) may be bad policy, and the lame-duck presidency may be dysfunctional. Indeed, there may be many examples to support both claims, and I take no position here, but it is far from obvious that Bryza's statement, properly understood, goes to either, at least in the way Levinson suggests.