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

263. Memorandum From Robert Linhard, William Heiser, and William Tobey of the National Security Council Staff to the President’s Assistant for National Security Affairs (Powell)¹

Washington, July 2, 1988

SUBJECT

• NSPG, Wednesday, July 6
• Handling the Krasnoyarsk Radar Issue

Attached at Tab I² is a short memorandum for the President which provides him with:

Tab A an NSC-developed issues paper;³

Tab 1 the letter from twenty Senators on this issue;⁴ and,

Tab 2 a paper containing 2 options for handling the situation.⁵

Attached at Tab II is a set of talking points drafted for your consideration. They track the paper at Tab A. In using these points, we would like to preposition the options paper (Tab 2) so that it is available in front of each participant. Unless we hear otherwise, we will discuss these two options with the ACSG on Tuesday (10:00 a.m. – noon) so that the majority of the NSPG principals should be familiar with the options before the meeting.

Also, in developing these points, we have suggested an order in which we would recommend that you attempt to take comments at the NSPG. The order is designed to ensure:

1. that all those with strong feelings have a chance to express themselves; and,

2. that the flow most likely supports a proper outcome.

Recommendations

That you approve and forward the memorandum to the President at Tab I (with the material at Tabs 1 and 2), and that you approve the approach to the NSPG suggested by the talking points drafted for your use at Tab II.⁶

Concurrence: None. Neither Rostow nor Fortier were available as this was drafted. We will provide copies to both on Tuesday morning.

Tab II

Talking Points Prepared in the National Security Council⁷

Washington, undated

National Security Planning Group

Talking Points for General Powell

INTRODUCTION

— Thank you, Mr. President.

— Let me say just a few words on the more general subject of the upcoming ABM Treaty review to put the main subject of our discussion in context.⁸

— The ABM Treaty requires us to conduct a five-year review by October 2 of this year; and we had previously told the Soviets that we intended to conduct the review by that date.

— Based on a SACG held last week,⁹ last Friday we proposed to the Soviets that we conduct the five-year review in Geneva from 14 to 20 July.

— The U.S. delegation will be headed by Bill Burns, and the preparations for the handling of the likely topics is coming along well.¹⁰

ISSUES

— The issues that we need to focus on today are:¹¹

1. are there sufficient grounds to support declaring the Krasnoyarsk radar a material breach,¹² of the ABM Treaty; and,

2. if so, should we declare it a material breach in the context¹³ of the upcoming five-year ABM Treaty review?

ISSUE 1: Are there sufficient grounds for material breach?

— According to the 1969 Vienna Convention on the Law of Treaties [Art 60, para 3], a material breach¹⁴ of a treaty consists in . . . “violation of a provision essential to the accomplishment of the object or purpose of the treaty.”

— The International Law Commission (ILC), which provided the official commentary to the Vienna Convention, stated that a material breach should be limited to cases where the violation or breach was of a serious nature;¹⁵ however, that this should not imply that it must involve a violation of a fundamental provision of the treaty.

— Other provisions considered by a party to be essential to the effective execution of the treaty may have been very material in inducing it to enter into the treaty at all, even though these provisions may be of an ancillary character.

— Finally, the American Law Institute position is that “not every breach of an agreement is material; only . . . a significant violation of a provision essential to the agreement . . .”

— The legal and policy experts of the various agencies have looked at the issue of the Krasnoyarsk radar in light of these definitions.

— All agree that the prohibition on construction of illegal¹⁶ large phased-array radars was considered essential to the agreement since the construction of such radars, which takes years, provides warning that one party is moving to deploy a nation-wide defense.

— Setting aside, for the moment, the subsequent issue of whether to declare it to be so at this time, a majority of your advisors [OSD, DCI, ACDA, OSTP, Rowny, Cooper] feel that the illegal Krasnoyarsk radar satisfies the definition of a material breach since the construction already completed erodes that warning time.¹⁷

— However, there are some [JCS, State] who hold the opinion that there are insufficient grounds for upgrading our assessment of the radar to a material breach at this time since:

(1) it has been four years since we discovered the construction of the radar,¹⁸

(2) we have already declared it to be a serious violation of the treaty and demanded the Soviets dismantle it,¹⁹

(3) while not taking the radar down, the Soviet Union has claimed to have stopped all work on the radar and there is some evidence that this is the case, and²⁰

(4) the Soviets have hinted that they would be prepared²¹ to take down the radar in the context of a new strategic forces treaty.

— We have also heard from the Congress on this issue. Some 20 Senators, including Bob Dole and key Republican conservatives, recently sent a letter to you, Mr. President, arguing that Krasnoyarsk is a clear violation of the ABM Treaty, likely intended as a battle management radar, and a material breach.²²

— The 20 Senators encourage you to declare Krasnoyarsk to be material breach at the ABM Treaty review conference. This brings us to the second main issue for today.

ISSUE 2: Should we declare material breach?

— Today’s second issue is, even if we decide there are sufficient grounds for calling the Krasnoyarsk violation a material breach, should we do so now?

— As I have said, 20 Senators encourage you to do so [Dole, Wallop, Wilson, Quayle, Warner, Hecht, Humphrey, Helms, Karnes, Symms, Grassley, McClure, Thurmond, Armstrong?, Gramm?, McCain?, Dixon (D–Ill), Heflin (D–Ala), Shelby (D–Ala), Hollings (D–SC)].

— Some of your advisors within the Executive Branch argue that we should declare Krasnoyarsk a material breach because, in their view, it is the only honest, straight forward thing to do.

— They would note that if this Administration can’t declare Krasnoyarsk to be a material breach, then what hope do we²³ have for future administrations taking appropriate measures against significant, but likely less clear-cut violations.

— They would further argue that a failure to declare a material breach now would send the wrong signal²⁴ to the Soviets concerning our seriousness about their compliance.

— Others advise against declaring a material breach at this time.

— Some, as we discussed earlier, [JCS, State] simply feel²⁵ that such a step is unwarranted at this time.

— Others take the view that while there are sufficient grounds for calling the Krasnoyarsk radar a material breach, we still should not take the step of declaring it as such at this time.

— They point out that the declaration of material breach is normally associated with some parallel declaration of a response to the breach;²⁶ and, under customary international law, the declaration of material breach serves notice that the declaring party feels it has the right, because of the material breach, to suspend some or all of the provisions of the treaty involved.

— We have already declared the Krasnoyarsk radar a significant violation of the²⁷ ABM Treaty.

— Having done so, we already have the right to take any programmatic response to the violation we wish as long as we do not exceed the ABM Treaty’s provisions.²⁸ However, to move beyond the treaty by suspending its provisions in whole or in part²⁹ in response to the Krasnoyarsk radar we must take the step of declaring a material breach.

— We currently have no specific programmatic responses to the Krasnoyarsk radar that we wish to take, and no agency has proposed that we suspend any part of the ABM Treaty at this time.

— This being the case, those against declaring a material breach now point out that, in their view, by doing so:

1. we may give the wrong impression that we are rapidly moving out from under the ABM Treaty (and that this is part of a tactic to do so before the end of the Administration);

2. in turn, we may encourage legislation designed to ensure we stay under the ABM Treaty, potentially hurting both our Defense & Space negotiating position and SDI options;

3. as time passes, although legally we would retain the right, we may politically weaken our ability to take appropriate action against the Krasnoyarsk violation;

4. declaring the material breach and taking no action may signal political weakness in this area to the Soviets; and

5. as a result of all of the above, we may significantly undercut U.S. compliance policy and its ability to affect Soviet non-compliance in the future.

OPTIONS

— At the SACG meeting held last week, we examined six options for handling the Krasnoyarsk radar in the upcoming review.³⁰

— In the folders in front of each of you are two options which represent our efforts to capture elements common to all approaches while maintaining the basic difference concerning whether or not to declare Krasnoyarsk a material breach.

QUESTIONS FOR DISCUSSION

— Mr. President, with my remarks as background, I would suggest that we now ask each of your advisors to give you their views on the issues and on the suggested options.

— As you do so, please try to address the following questions:

(1) are the grounds sufficient to call Krasnoyarsk a material breach;

(2) if so, should we do so at this time;

(3) can you support either of the options presented; and,

(4) what would be the consequences of implementing each of the two options suggested?

DISCUSSION

— [CARLUCCI] Secretary Carlucci, perhaps you would like to start us off?

[After FCC’s initial remarks]

— Mr. Secretary, do you think that with more time we can develop additional options for responding to the Krasnoyarsk radar, and if so, how much time would be needed to do so?

— [BURNS] Bill, you will be leading the U.S. team. How do you see the issue and how would ACDA answer the questions posed?

— [WEBSTER] Judge, your turn to take the quiz. Besides addressing the questions, would you also comment on the status of the Krasnoyarsk radar?

— [ROWNY] Ed, you have strong views on this. How would you answer the questions?

— [NITZE] Paul, what about you?

— [GRAHAM] Mr. President, your Science Advisor was also the chairman of the General Advisory Council on arms control for a good part of the Administration. Bill, how do you answer the questions posed.

— [KAMPELMAN] Max (sitting in for SecState who is traveling), what is the State Department view? How would Secretary Shultz answer the four questions posed?

— [HERRES] General (Crowe will be hosting Akhromeyev), how would the Chiefs answer the questions?

— [KRANOWITZ] Allan, could you give us your view as to how each of the two options would play on the hill?

— [HERRES Again] Well, no matter what we do on this, we can expect hearings. The Chiefs will be asked to give their assessment of the military consequences of the choice made. General, what would the Chiefs likely be able to say with respect to the two options before us?

[If Fitzwater is present]

— [FITZWATER] Marlin, how will each of the two options play publicly? If we were to decide to declare a material breach now, how difficult will it be to correct the impression that we are rushing to get out of the treaty?

— [KAMPELMAN Again] Max, how will the Allies react to each of the options?

— [OTHERS] Do others have additional comments?

SUMMARY

— Based on today’s discussion, it seems we have some consensus on the following points:

[SUMMARIZE CONSENSUS, IF ANY]

— However, differences still remain.

— We will capture the points made today and provide to you, Mr. President, a decision paper on these issues.

— Before we adjourn, I would like to say something about the press.

— We have now had a series of articles on our internal deliberations on this issue; including some leaks out of the SACG which is very rare.

— Please hold today’s discussion very closely.

— Mr. President, unless you have something to add, this concludes today’s meeting.

1. Source: National Security Council, National Security Council Institution Files, Box SR–113, NSPG 0193. Secret. Sent for action.
2. Printed as Document 264.
3. Printed as Tab C, Document 264.
4. Printed as Tab 1, Document 265.
5. Printed as Tab 2, Document 265.
6. Powell approved the recommendation.
7. Secret. All brackets are in the original. The document indicates that the meeting was scheduled for July 6 from 11 a.m. until 11:50 a.m. in the White House Situation Room.
8. Powell crossed out this point.
9. June 29. See Document 261.
10. Powell wrote at the end of this point: “Haven’t heard from Sovs.”
11. Powell drew a horizontal line from the end of this clause to the adjacent right-hand margin and wrote: “Serious violation.”
12. Powell underlined “material breach.”
13. Powell underlined “in the context.”
14. Powell underlined “a material breach.”
15. Powell underlined “material breach should be limited to cases where the violation or breach was of a serious nature.”
16. Powell underlined “All agree that the prohibition on construction of illegal.”
17. Powell underlined “satisfies” and “since the construction already completed erodes that warning time.”
18. Powell underlined “it has been four years since we discovered the construction of the radar.”
19. Powell underlined “a serious violation” and “demanded the Soviets dismantle it.”
20. Powell underlined “claimed to have stopped all work on the radar and there is some evidence that this is the case, and.”
21. Powell underlined “they would be prepared.”
22. See Tab 1, Document 265.
23. Powell underlined “then what hope do we.”
24. Powell underlined “send the wrong signal.”
25. Powell underlined “simply feel.”
26. Powell underlined “with some parallel declaration of a response to the breach.”
27. Powell underlined “significant violation of the.”
28. Powell underlined “we wish as long as we do not exceed the ABM Treaty’s provisions.”
29. Powell underlined “by suspending its provisions in whole or in part.”
30. Powell crossed out this point.