Foreign Relations of the United States, 1981–1988, Volume XLIV, Part 1, National Security Policy, 1985–1988

203. Memorandum From the Legal Adviser of the Department of State (Sofaer) to Robert Linhard of the National Security Council Staff¹

Washington, February 2, 1987

SUBJECT

• Whether a Proper Basis now Exists for Implementing the “Broad” View of the ABM Treaty

You asked me whether the President could now properly implement the “broad” view of the ABM Treaty, and if not what steps should be taken before that issue could definitively be addressed.

The President will be able to implement the broad view when he is satisfied on the basis of all relevant criteria that it is the legally correct interpretation (“LCI”), and when he determines that no other legal obstacle exists to its immediate implementation.

In my judgment, the work necessary for a final decision on the LCI of the ABM Treaty is substantially advanced, but still incomplete. In particular, (1) we should afford the Senate a full opportunity to consider our position on the negotiating record; and (2) we should complete our study of subsequent conduct and permit the Senate to respond to our conclusions. In addition, issues remain which constitute potential legal obstacles to the immediate implementation of the broad view. In particular, (1) we should deal with the claim that Executive branch representations made during ratification of the Treaty are legally binding; and (2) we must avoid actions inconsistent with governing SDI legislation. (These issues are discussed in Tab A.)²

A proposed agenda for completing the work necessary to enable the President to make a final judgment on the LCI is attached (Tab B).³ It contemplates a program of legal research and analysis, as well as a full dialogue with Congress. (A draft letter to Senators Nunn and Warner announcing the President’s willingness to engage in this dialogue is attached at Tab C.)⁴ The entire process could be completed within about six months.

Permitting this process of analysis and consultation to proceed on a reasonable but expedited schedule would:

* avoid a reaction from Congress (especially the Senate) based on a bipartisan defense of institutional prerogatives;

* lend credibility to Administration claims on the merits of the broad interpretation;

* preserve legislative good will necessary for future funding of SDI activities;

* place added pressure on the Soviets for a negotiated agreement that moots the legislative controversy;

* fulfill our commitment to notify our alliance partners of an intention to switch to the broad view.

Finally, a careful legal analysis is also necessary, before the President acts, to determine what advantages the United States would obtain by switching to the broad view. The broad view is helpful only with respect to certain tests of certain devices based on other physical principles (OPP). Deployment of any system is governed by Article I, and the development, testing or deployment of a non-OPP system or component is subject to all the constraints in the Treaty, including all the limitations of Articles V and VI. Many of the tests contemplated under the phased deployment scheme, particularly of kinetic kill vehicles (KKVs), will be lawful under the broad view only if we establish that KKVs are not “missiles” and therefore are governed solely by Agreed Statement D. More important, the Treaty contains no definition of what constitutes a “component” based upon OPP comparable to the definitions in Article II.

1. Source: Department of State, Ambassador Nitze’s Personal Files 1953, 1972–1989, Lot 90D397, 1987. Top Secret. In a February 2 memorandum to Shultz, Sofaer wrote: “Issue for Decision: Whether to send the attached Platt/Carlucci with the memorandum that Col. Linhard requested I prepare. (I have shown the memorandum to the Attorney General, who seems likely to agree to its recommendations.) I recommend that you approve sending the memorandum.” Shultz approved Sofaer’s recommendation. (Ibid.) Platt sent Sofaer’s memorandum to Linhard under cover of a February 2 memorandum to Carlucci. (Ibid.)
2. Attached but not printed is a paper prepared in the Department of State laying out steps required before a decision on LCI, and possible legal obstacles to immediate implementation.
3. Attached but not printed is a proposed work agenda prepared in the Department of State.
4. Attached but not printed is a draft letter from President Reagan to Senators Nunn and Warner.