14. Memorandum From the General Counsel to the Arms Control and Disarmament Agency (Graham) to the Special Advisor to the President and Secretary of State on Arms Control Matters (Nitze)1
SUBJECT
- Relationship of the Strategic Defense Initiative to the Existing Arms Control Treaty Regime
The following discusses how the SDI program, generally, would be affected by the existing treaty regime. The agreements that are applicable are the 1972 ABM Treaty, the 1963 Limited Test Ban Treaty, the 1967 Outer Space Treaty, and the unratified, but informally observed, 1974 Threshold Test Ban Treaty.
ABM Treaty
The principal effect of the Treaty is to prohibit each party from deploying ABM systems or their components, except for one ABM complex—located either at its capital or at an ICBM deployment area—with no more than 100 ABM launchers, no more than 100 ABM interceptor missiles at launch sites, and a restricted number of ABM radars. These ABM components must be fixed (non-mobile) land-based. It is also legitimate to test such components at agreed ABM test ranges.
Article V of the Treaty bans the development, testing, or deployment of ABM systems or components which are space-based, sea-based, air-based, or mobile land-based. Article III bans the deployment of all other ABM systems, except the one site (with current technology) specifically permitted.
The Treaty lists the following as “currently” being components of an ABM system: ABM interceptor missiles, ABM launchers and ABM radars, i.e., interceptor missiles, launchers and radars constructed and deployed for an ABM role, or of a type tested in an ABM mode. Although “development and testing” of space-based ABM components are banned by the Treaty, its negotiating history indicates that laboratory development and testing are not covered by the specific treaty prohibitions against “development.” These prohibitions begin “. . . at that part of the development process where field testing is initiated on either a prototype or breadboard model.” Moreover, field testing of sub-components or other devices that are not components is also permitted, [Page 41] for example in a technology demonstration. In other words, if a device is not itself an ABM interceptor, an ABM launcher, or an ABM radar as defined by the Treaty, or if it is not capable of substituting for one of those components, it can be field tested. The separate testing of subcomponents that together add up to a component is also permissible. On the other hand, there is a limit on how far we can develop or test sub-components of a space-based system, in that the Treaty does not allow them to be tested “in an ABM mode.”
Under the Treaty, only ABM systems, ABM components, or devices capable of substituting for ABM components are regulated. Thus, non-ABM technology that is not capable of substituting for an ABM component is not subject to the Treaty. Devices such as infra-red sensors would not be regulated by the Treaty unless they operate with other devices in a way so that they can be argued to be substitutes for ABM radars.
In addition, in subsidiary “Agreed Statement E,” (in conjunction with Article III) the parties agreed that “. . . in the event ABM systems based or other physical principles and including components capable of substituting for ABM interceptor missiles, ABM launchers, or ABM radars are created in the future, specific limitations on such systems and their components would be subject to discussion in accordance with Article XIII [S.C.C.] and agreement in accordance with Article XIV [amendment] of the Treaty.” The significance of Agreed Statement E is that in the event that fixed, land-based systems or components based on new physical principles are “created,” deployment would be prohibited unless the parties consult and amend the Treaty. This is interpreted to mean that such components may be tested, but not deployed absent consultation and agreement on amendment.
According to the definition provided for in Article II.1, “An ABM system is a system to counter strategic ballistic missiles or their elements in flight trajectory . . .” Thus, systems that can only counter tactical ballistic missiles or cruise missiles would not be covered. In addition, the parties agreed in Article VI.A. “not to give missiles, launchers or radars other than ABM missiles, ABM launchers, or ABM radars capabilities to counter strategic ballistic missiles or their elements in flight trajectory.” Thus, it does not matter what a party says a system or component is for; it is the capabilities of the system or component that matters.
The following is a discussion of some of our SDI-related programs. The Soviets have already raised the first two of these programs in the SCC, questioning whether they are consistent with the ABM Treaty:
Homing Overlay Experiment (HOE). There were four tests in the now-completed HOE program; only the fourth, on June 10, 1984 was completely successful. It demonstrated the first non-nuclear kill of an [Page 42] ICBM RV. The HOE missile used the first two stages of a Minuteman I ICBM for boost. The target was tracked by radars at Kaena Point, Hawaii. The precomputed aim point and launch time for HOE were corrected using these data. HOE was steered to the pre-determined point by its inertial guidance system, and then its on-board infra-red sensor acquired the target. No radar guided the interceptor during its flight. The Kaena radar had ceased operation prior to the launch of the HOE.
The HOE was a vehicle tested in an ABM mode in full compliance with the ABM Treaty. The HOE is a fixed, land-based interceptor missile, the testing of which is allowed by the Treaty. The use of two stages of the MMI was legal—this is not giving a non-ABM interceptor missile the capability of countering a strategic ballistic missile since Soviet NTM can distinguish that the HOE is different from an MMI ICBM. The use of the Kaena Point radar does not mean that this radar was tested in an ABM mode since it did not operate in conjunction with an ABM interceptor missile or an ABM radar. It can also be argued that as the booster used in the HOE test series is not one that would ever be deployed, therefore this was not a test of an ABM component but simply a demonstration of technology.
Queen Match. The program will use an Aries booster to launch an optical sensor system to obtain exoatmospheric data on Soviet ballistic missiles targeted for impact on the Kamchatka Peninsula. This program does not involve an ABM component. The booster is not an ABM interceptor. The sensor cannot substitute for an ABM radar.
Talon Gold. This program is being reconfigured. As previously planned, it would have used the space shuttle to test a low power laser by illuminating specially designed targets in space, on aircraft and on the ground. Talon Gold was an experiment which would not have involved an ABM component or ABM system. No interceptor was contemplated; the laser device to have been used was of such low energy it could not damage a target, nor was it capable of substituting for an ABM radar.
Excalibur. This program, which is only in technology testing at this stage, would use a nuclear explosion in space to power a laser that would counter Soviet missile RVs. If it is based in space, the development and testing of an Excalibur-type weapon would violate Article V of the ABM Treaty. However, if it were land-based, never tested in space, and merely launched by a booster during attack, it is arguably consistent with Article V of the Treaty on the ground that although it is designed to function in space, it is not based in space. However, since the laser would substitute for an interceptor missile, such a land-based system could be tested, but not deployed without amendment of the Treaty pursuant to Agreed Statement E. In addition, its nuclear [Page 43] explosion powering mechanism could never be tested in space without also violating the LTBT.
Kinetic Energy Devices. Space-based devices possibly could be developed that would use kinetic energy to shoot projectiles at missile RVs. Such a system would cause potential compliance problems under the ABM Treaty as it would be a prohibited space-based ABM system.
Other treaties, while not having as wide-ranging an impact on the SDI program as the ABM Treaty, may also be applicable to some aspects of it. The Outer Space Treaty prohibits the parties to it from placing in orbit around the earth “any objects carrying nuclear weapons or any other kinds of weapons of mass destruction” and from stationing such weapons in outer space. “Weapons of mass destruction” encompasses both nuclear weapons and chemical and biological weapons. The provision forbids placing these weapons in orbit or stationing them in space. This provision would preclude arming satellites or other orbiting objects with nuclear weapons and as such would prohibit the orbiting of a nuclear explosive powered laser weapon in space.
The Limited Test Ban Treaty prohibits all nuclear weapon test explosions or any other nuclear explosion in the atmosphere and in outer space. The detonation of a nuclear weapon on a test interceptor in space would not be prohibited by the Outer Space Treaty because the missile would never attain orbit, but it would be prohibited by the Limited Test Ban Treaty which bans test nuclear explosions in space. Thus, for example, the Treaty provides a significant legal constraint on the testing of a nuclear-explosion-powered laser weapon in space, even if that weapon never orbits the earth. The Treaty does not, however, prohibit the development of nuclear explosive devices for use in space. The testing of the nuclear-explosive component of a laser weapon could be carried out underground, but only in a manner which will not result in venting that causes detectable fallout to be present beyond the testing party’s territorial borders and, of course, consistent with the limit of 150 kilotons in the 1974 Threshold Test Ban Treaty.
- Source: Department of State, Ambassador Nitze’s Personal Files 1953, 1972–1989, Lot 90D397, January–February 1985. Secret. All brackets are in the original.↩