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

245. Memorandum From the Legal Advisor of the Department of State (Sofaer) to Secretary of State Shultz¹

Washington, January 6, 1988

SUBJECT

• Handling of Issues Related to SBKKVs

On December 4, 1987, an NSC Staff directive ordered the Legal Adviser to issue an opinion on whether under the ABM Treaty KKV systems, both land and space-based, are based on “other physical principles” (Tab A).² The opinion is due on January 15, 1988, and we are attempting to complete it on schedule. It is considered necessary in order to justify development and testing requests that DOD apparently intends to include in the Fiscal 1989 budget.

If the Administration seeks funding for SBKKV development and testing we should expect a major controversy, cast in legal terms, over the SBKKV. To succeed, we will have to establish (1) that the broad interpretation is the valid measure of our lawful authority, (2) that the SBKKV is an OPP system; and (3) that any non-OPP component in the SBKKV may be developed and tested in space despite Article V(l) and Article VI. These are difficult and in some cases very close questions.

We would also have to deal with these potentially embarrassing difficulties:

— Opponents will note that numerous Administration officials have already expressed their views on aspects of this question, and their positions have varied. Among others:

○ SDIO officially regards all KKV systems as entirely OPP;

○ Gen. Abrahamson has testified that ERIS (ground-based KKV) is non-OPP, but SBI is OPP;

○ Amb. Cooper has argued with the Soviets that an early ground-based KKV was not OPP;

○ Amb. Nitze has widely stated that he believes that the KKV is a missile, so it must either be an ABM missile (governed by Article V) or a non-ABM missile (governed by Article VI);

○ The Science Adviser seems likely to find the SBKKV is OPP, but is apparently unsure of whether ERIS is OPP.

— Several legislative leaders, including Senators Nunn, Levin, and Johnson, have stated the view that SBKKVs may not lawfully be tested under the broad interpretation, and this view will prevail because other Democrats will defer to Senator Nunn’s judgment, especially since Nitze has concurred.

— My own view is still uncertain. While the SDIO legal position is well reasoned, I am undecided on at least one major issue (whether, if the KKV is an ABM missile, it can be tested in space because it is part of an OPP system). At a minimum, I have decided that the Treaty and a 1978 Agreement require us to discuss these issues with the Soviets in the SCC.

The Administration could proceed, at this time, with funding requests for a package of KKV tests that could contribute materially to the SDI program, but would defer the issue of SBKKV testing. The package could include the full range of ERIS tests, as well as tests in space of the sensor systems planned for the SBKKV. We could even seek funding for tests in space of an SBKKV system that is not ABM capable without raising legal difficulties. Of course, if Nunn confirms that he is in fact ready to revisit the merits of the broad interpretation with an open mind (which I don’t believe), we could seek greater flexibility.

If the President insists on going ahead with a funding request for SBKKV development and testing, despite the risks, we should formulate a strategy to ensure that we make a respectable showing. We should, first, rest our plans on a legal position that has as wide a base of support within the Administration as possible. For this purpose, I should be tasked to circulate, not a final opinion, but a paper that describes the arguments on all significant issues, on the basis of which leading Administration figures and attorneys could discuss the options and formulate a position. Second, we should all be much more positive and supportive of the position we take, so that Congress is clearly aware that we mean business. Finally, we must have a legislative strategy which includes prior consultations with leading legislators to ascertain what we can win and what we will lose. We may decide to go ahead and lose on certain requests, but we should do so with a full awareness of this result and with a PR line that makes it clear that we have no illusions and are making a record.

1. Source: Department of State, Executive Secretariat, S/S–IRM Records, The Executive Secretariat’s Special Caption Documents, Lot 92D630, January–April 1988. Secret; Sensitive. Not for the System. Drafted by Sofaer on January 5.
2. Attached but not printed is a December 4, 1987, memorandum from Stevens to Levitsky, Matz, William Staples (ACDA), and Jonathan Thompson (Office of Science and Technology Policy): “In order to ensure both maximum flexibility for the SDI program and scrupulous compliance with the ABM Treaty, it is necessary to resolve the question of whether space-based kinetic energy systems and ground-based systems such as ERIS are based on ‘other physical principles’ within the meaning of Agreed Statement D of the ABM Treaty. The State Department Legal Adviser is requested to opine on these matters and to provide such opinion to the NSC not later than January 15, 1988. In formulating this opinion, State/L should seek technical advice from the Department of Defense and the Office of Science and Technology Policy, and legal and policy advice from relevant departments and agencies.” (Ibid.)