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

266. Minutes of a National Security Planning Group Meeting¹

Washington, July 6, 1988, 11 a.m.–noon

SUBJECT

• ABM Treaty Review (U)

PARTICIPANTS

• The President

• The Vice President’s Office:

  • Craig Fuller
  • Sam Watson

• State:

  • John Whitehead
  • Ambassador Max Kampelman
  • Ambassador Paul Nitze
  • Ambassador Edward Rowny

• Defense:

  • Secretary Frank Carlucci
  • Ronald Lehman

• Treasury:

  • Secretary James Baker, III

• Justice:

  • Attorney General Edwin Meese

• CIA:

  • William Webster
  • Jay Castillo

• White House:

  • Kenneth Duberstein
  • Alan Kranowitz
  • Marlin Fitzwater
  • Colin Powell
  • John Negroponte

• NSC:

  • Robert Linhard
  • Bill Heiser

• OMB:

  • Director James Miller

• OSTP:

  • William Graham

• ACDA:

  • Director William Burns
  • Louis Nosenzo

• JCS:

  • Robert Herres
  • Jonathan Howe

Minutes

The meeting opened at 11:00 A.M. The President opened the meeting as follows:

— The ABM Treaty requires us to conduct a five-year review by October 2.

— Thanks to the hard work of your staffs, the preparations for that review are coming along quite well.

— However, one critical issue we still face is whether, in the context of this five-year review, we should declare the illegal Soviet radar at Krasnoyarsk to be a material breach of the ABM Treaty.

— We all agree that the Krasnoyarsk radar is a serious violation of a central element of that treaty, and we have said so to the Soviets, to the Congress, and to the American public. That is not the issue.

— Today’s discussion should focus on clearly identifying:

— the U.S. objectives sought by declaring this illegal radar to be a material breach of the ABM Treaty; and

— the advantages, benefits, risks and consequences to the United States of taking such an action at this time. (S)

General Powell: 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,² last Friday we proposed to the Soviets that we conduct the five-year review in Geneva from 14 to 20 of July. The U.S. delegation will be headed by Bill Burns, and the preparations are coming along fairly well. We haven’t yet heard from the Soviets on whether they will accept the date. (S)

— The main issue we have to deal with today is Krasnoyarsk and whether we should declare it a material breach. (S)

— There are two questions that we should address. One is are there sufficient grounds to support declaring the Krasnoyarsk radar a material breach of the ABM Treaty and two, if that is the case should we declare it a breach in the context of the five-year ABM Treaty review? (S)

— With respect to the first issue (that is, are there sufficient grounds for calling it a material breach), we can, of course, declare a material breach at any time. According to the 1969 Vienna Convention on the Law of Treaties [Article 60, paragraph 3], a material breach of a treaty consists in . . . “violation of a provision essential to the accomplishment of the object or purpose of the treaty.” (U)

— 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; however, that this should not imply that it must involve only a fundamental provision of the treaty. (U)

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

— Setting aside, for the moment, the subsequent issue of whether to declare it to be a material breach, you should note that we can declare a material breach at anytime and we should recognize that a lot of people tend to point to this review as the appropriate time for us to look at this issue. As I said, all of your advisors have looked at the law and all agree that it is a serious matter even if the radar is not completed. The reason is that it takes away lead time that we felt was essential to the Treaty itself and the Treaty was designed to stop such actions. A majority of your advisors including OSD, the DCI, ACDA, OSTP, Ambassador Rowny, and Ambassador Cooper feel that the illegal Krasnoyarsk radar satisfies the definition of a material breach since the construction already completed erodes that warning time to respond to this kind of radar system. They feel that it is necessary to respond to this kind of radar in any case. (S)

— State and JCS feel there are insufficient grounds to upgrade our assessment of the radar to a material breach. They recognize that it is a serious violation, however, they hold this view for the following reasons. First of all it has been four years since we discovered the construction of the radar. Second, we have already declared it to be a serious violation of the Treaty and demanded the Soviets dismantle it. Third, 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. In fact, according to what the CIA tells me, there is no serious work on the radar and they have not fixed the damage from last year’s weather. Finally, the Soviets have hinted to us that they would be prepared to take down the radar in the context of a new strategic forces treaty. (S)

— 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,³ arguing that Krasnoyarsk is a clear violation of the ABM Treaty, likely intended as a battle management radar. They think it is material breach. They also think you ought to declare it and do so at the ABM Treaty review. (U)

— This brings us to our second question and that is should we, in fact, declare a breach? (U)

— As I said, 20 Senators or so including Bob Dole, Bill Gramm, John Warner, and a number of conservatives encourage you to do so. (U)

— Some in the Executive Branch also say we should do so now because it is, in their views, the only honest, straightforward thing to do. (U)

— Those who encourage you note that if this Administration can’t declare Krasnoyarsk to be a material breach, then what hope do we have for future administrations taking appropriate measures against significant, but likely less clear-cut violations. (U)

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

— Others argue and advise against declaring a material breach at this time. Some feel that we just don’t have the evidence to warrant that. These include the State Department and the JCS. (S)

— Others view that declaration of a material breach is normally associated with some parallel declaration of response to the breach; 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 all or part of the provisions of the treaty involved. In other words, it declares our right to abrogate the treaty in whole or in part. (U)

— We have already declared the Krasnoyarsk radar a significant violation of the ABM Treaty. (U)

— Having done so, we already have the right to take any programmatic response to the violation we wish. No one is advising now that we abrogate the Treaty in whole or in part and we are kind of short on programmatic responses. (S)

— The packages in front of you contain set of options that we have developed.⁴ The issue that we face is do we tell them at the review or right after the review that we consider this to be a material breach. (U)

— I think now, Mr. President, it would a good idea to get the views of those involved. (S)

Secretary Carlucci: It is the opinion of the Department of Defense that we should declare a material breach at the review. The Krasnoyarsk radar is militarily at the heart of the Treaty and quoting from your own compliance report you have identified it as a significant breach. [Secretary Carlucci then read from the most recent USG Compliance Report.] It is certainly essential to the object and the purpose of the treaty. If you look at it in context, it is part of a recurring pattern of radar construction. This pattern has to be halted if arms control is going to continue. The only military reason that this type of a radar can be located where it is, would be for purposes that are in violation of the treaty. This action declaring a material breach is required if we are to maintain our compliance policy. I think everyone agrees that a material breach does not require a quick and immediate response. (S)

[At this point, General Powell interrupted and said he agreed.] (U)

Secretary Carlucci: Therefore, I think we ought to call it a material breach and then study what our options might be for taking action. If the President doesn’t take this action on, I’m sure no future President will. We need to be consistent and consistency is needed in our compliance policy. I would note, Mr. President, that verification is worthless without compliance. Therefore, you should declare it a material breach. (S)

General Powell: I think everyone agrees that some proportional response is needed. (S)

Secretary Carlucci: I agree that we should have had a proportional response ready to announce. I think what we need to do now is to consult the Congress. Our responses should not be limited just to programmatic, we could take political and diplomatic responses. I think we could declare it and then work with Congress and decide what our response should be. (S)

Deputy Secretary Whitehead: The problem is that State disagrees with that assessment. We feel that there are not proper grounds now for declaring a material breach and even if we had the grounds, it would not be right to do so right now. Our object is to obtain Soviet compliance and have their radar come down. We have pressed them very, very hard. There is evidence that the approach we have taken is working. We have declared a violation and this approach appears to be working. They have stopped the construction of the radar. They may, in fact, dismantle the radar in the context of the START agreement. Since they are not operating it, and since it is not being improved or under construction right now, we feel there are no grounds for declaring a material breach. Declaring a material breach under these conditions would only signal our intent to withdraw from the treaty. The Soviets, in fact, are in a better position to breakout from the treaty than we are. Now is not the time to signal such a move. And I would like to suggest that we hear from Ambassador Kampelman. (S)

Ambassador Kampelman: We have already declared that it’s a serious violation and that allows us to do whatever we want except withdraw or suspend the treaty itself. So we can respond if we wish. The term material breach involves magic words that signal an intent to withdraw. If a material breach is declared, it will be clearly understood as laying a foundation for withdrawal from the ABM Treaty. It is my understanding that no one wants to withdraw from the ABM Treaty. So there is no reason at this point to declare a material breach. What you would be doing would produce an impression which will cause us criticism. I understand, Mr. President, that 20 Senators are urging you to do so but I believe that a large majority of Senators and Congressmen and our Allies would oppose such an action. There are some who would argue that we should do it now at the five-year review, but we can as we said, do it anytime we wish and, Mr. President, we have to ask ourselves what has happened in the last few years that would cause us to declare a material breach. What, in fact, has happened is that diplomacy may have worked. They have stopped construction. [less than 1 line not declassified] they are now three to four years from being operational. They have done nothing but move in our direction on this issue after our initial declaring a violation of the Treaty. Are we just to go to a material breach now? I don’t think that makes very much sense. I also note that Judge Sofaer says that it is not a material breach because the radar is not operational. It is certainly a serious violation. I do agree that we have a problem. Secretary Carlucci is correct. We do need to show we are serious about compliance. Our record with SALT II is a good example. Maybe we should respond to this Krasnoyarsk radar but not do so on the basis of calling it a material breach, which in my view would bring down the whole house of cards. We have already said there would be no START or Defense and Space Treaties until Krasnoyarsk is resolved and that is certainly a response but perhaps that is not enough of a response. Why don’t we let DOD do work on the options and work with the Congress but let’s not call it a material breach. (S)

General Powell: Well, Mr. President, as they say in the artillery, we have had one round over and one short. Let’s see if we can hit one on the mark. (U)

Director Burns: I would like to give you my views both as the person who is going to conduct the review and as the Director of ACDA. ACDA’s view is that we should declare a material breach because it is a material breach. I see the primary purpose of the five-year review is to remove the radar. A threat of a material breach provides us some leverage. In fact, since we are already discussing this in the press, if we don’t do so it might be interpreted as a sign of weakness. Therefore, I would like to see you instruct me to try hard to bring it down and if not then to bring back the situation and let you declare it to be a material breach. I think it’s absolutely right that you direct DOD to work on options suggested in the options paper. (S)

Judge Webster: Well, I wouldn’t want to get involved in the policy debate, and I have no policy comment. However, I would like to talk to you a little about what the likely Soviet response would be. If we do nothing, General Burns may be right.

The Soviets may think, if fact, that it’s a sign of weakness. [5 lines not declassified].

Based on [less than 1 line not declassified] evidence, we believe that it will take three to four years to repair the radar. [2½ lines not declassified]. (At this point, Judge Webster also handed out a line-drawing that showed that the radar filled a gap in the warning coverages in the Soviet Union.)⁵ (S)

The reason why they might have put the radar where they did is because they need to fill this gap, and they couldn’t put it on the periphery, where they really needed to put it, because it’s all wasteland up there. And if they didn’t put a radar in this general area, there would be a gap. So probably the explanation of why they put it there is to fill that purpose. They exacerbated the situation by claiming it was a space-track radar. Certainly, it’s not that, but it does provide a peripheral early-warning function, and they probably couldn’t have gotten it any closer to the periphery because of the wasteland. There are differences in the Intelligence Community as to whether it could serve as a battle management function. That function, of course, would be illegal. (S)

With respect to what the Soviets will do if we do declare, my sense is if we declare a material breach, the Soviets will take at least three months or so before they have to do anything. They’ll wait to see what the next Administration is going to do. We will call our action a lawful response. They will call their radar lawful. They will challenge our radars at Fylingdales and Thule and claim that they are violations. They will call attention to their moratorium on construction at Krasnoyarsk, which began in October of 1987, and they will use any and all the steps in the Vienna Convention procedures to cause delay in any U.S. activity. Finally, they’ll claim that, in fact, this declaration of material breach is really a tactic to get out from under the ABM Treaty and a way to get more support for our SDI program. I would note, after saying all that, that I do think that the radar is a material breach. (S)

Ambassador Rowny: The words “material breach” are used by the Vienna Convention. However, we should recognize that it allows us to consider reactions that suspend the Treaty provisions in whole or in part, and this is a violation to which we could react appropriately by suspending some parts of the Treaty. Therefore, our response should be in part. We are not talking about walking away from the whole Treaty, Mr. President. We should never say that we intend to walk from the whole Treaty. What we’re really doing is responding. Everyone agrees that it is a material breach; therefore, it is wrong not to declare it a material breach. At the same time, it’s wrong to say that we’re getting away from the entire ABM Treaty, but instead we’re moving away appropriately, in part, from the Treaty. (S)

Ambassador Nitze: We need to talk about the political consequences of declaring a material breach. The practical consequences are zero. If we declare a material breach the practical outcome will be that the Soviets will use the Vienna Convention procedures to delay us. We ought to avoid the Vienna Convention procedures in any way we can. We can’t have us going to the UN Secretary General, and committees of arbitration. We will be tied up for years. In fact, we can do anything we want right now. We could take proportionate response without calling it a material breach. I agree with Max that many senators will react negatively. They will take steps to ensure we don’t undercut the ABM Treaty and fight to keep us from walking away from the Treaty. The general Allied response would be very, very negative. There’s no gain in this. The Soviets will not be forced to dismantle the radar by the words “material breach.” All the consequences are negative. (S)

General Herres: Unfortunately, I have to disagree with the Secretary of Defense. We believe that there can be no material breach until the radar goes on the air. We simply don’t know the characteristics of the radar until that time. After it’s on the air, we still will have plenty of time as they have to calibrate and integrate the radar. Certainly, there’s some loss of lead time for a potential for a breakout, but this one radar alone does not provide that great of potential. They can break out without this radar. All radars, even our own which are allowed by the Treaty, can contribute to an ABM capability. If we declare the material breach, the Soviets, in fact, could dismantle it, and after dismantling it, put extreme pressure on us to do the same to Thule and Fylingdales. From a military point of view, this structure (which someday could house a radar) is simply not a material breach of the Treaty.

Dr. Graham: I agree with General Herres that this one radar alone is not a problem, but it’s a part of a long series of problems. In 1981 and 1982, we repeatedly raised other radars that are, in fact, permitted under the ABM Treaty as being problems because they built on our concern that we were seeing national capability going in. Since then we found the Krasnoyarsk radar, and we’ve raised it eight times in the SCC. The Soviets have not responded to our concerns, and it’s certainly not a space-track radar. (S)

I also have to mention, Mr. President, that a number of people said that everyone here would not object to the ABM Treaty, but I want to add my voice to those who would. The ABM Treaty constrains us a lot more than it does the Soviets. If we had full funding and full freedom, we could do a lot better in research with no ABM Treaty than if the ABM Treaty existed. The type of capability that we were building in the Defense budget in 1983, and when we declared the SDI program, caused the Soviets more concern than anything else. If we were to bring up our concerns and offer the prospect that we would unleash our technology, it would scare the Soviets into taking down the radar. Now, I can’t talk to the Congressional problem; I recognize that my approach requires full funding, and the Congress has not been supportive, but I would declare material breach and go for full funding and I think that would help. (C)

[General Powell asks Kranowitz for his opinion.]

Mr. Kranowitz: I’d just like to comment on the politics of the situation. The Senate and House both have clearly voted, repeatedly, that the Krasnoyarsk radar is a “violation,” unanimously. But I think, Mr. President, if you would go to the House today, most people would not know what the term “material breach” meant, and the Senate would not be a lot better. This, without a doubt, is going to be a political hot potato. If you don’t declare a material breach, it’s clear that you will have about 20 senators sign the letter that will oppose your action. If you do declare a material breach, there’s no doubt that Senator Nunn will call hearings, and at least the month of September, if not more, will involve a very prolonged arms control debate on the Hill. I’m not sure whether the debate is in our interest or not. So in summary, this is a political hot potato, and there’s a great lack of education on the Hill on the issue. (C)

Attorney General Meese: I’m impressed by George Shultz’s praise of realism and reciprocity, and that has gotten us very far. We need to be a realist and we need to express the same candor in our relationship with the Soviets. That has been useful for us up to now. This isn’t a political issue; either it’s a material breach or not. The fact that they have stopped their construction, but not dismantled it, doesn’t change things. They’re just playing along. It’s like a burglar who climbs in the window and climbs out, but once he’s in, he has committed a crime. We have an issue of domestic credibility if we don’t declare a material breach. And by the way, the 20 who signed that letter to you are our friends—they’re the people who support the Defense budget. Mr. President, if you call a spade a spade with all candor, you can’t lose. We should make it clear that we’re not going to abrogate the Treaty and tell them there will be responses if they don’t dismantle. Now this can’t really upset the U.S.-Soviet relationship if you take it in that manner. The matter is in the Press already; we really do need to go in this direction. Therefore, I recommend that it’s a material breach, make it absolutely clear that there’s no intention to abrogate the Treaty, and tell them in the future that there will be responses based on their actions. (C)

Secretary Baker: I agree with Ed Meese. We may want to let the negotiator have some leverage. There’s no reason to declare material breach before we get there for the review. (C)

[General Powell interrupts.]

General Powell: Nobody really wants to do that. We’re talking about at the review giving our signal, and after the review having the President make the declaration. (S)

Secretary Baker: Well, Mr. President, okay, then I’m with you. Remember, rather than talk about George Shultz’s reciprocity and realism, I’d rather talk about your phrase “peace through strength.” If it is a material breach, you lose by not calling it so. Without a doubt, not doing so we would be seen as a sign of weakness. (C)

Judge Webster: I would note that the Soviets probably have political problems too. They may want to do something with this radar short of leveling it. We ought to keep our options open. (C)

Secretary Carlucci: They know it’s an embarrassment to them. When we met with Yazov, Ron Lehman asked them who was so dumb as to build the radar there, and Yazov responded that it was not done on his watch.⁶ (C)

Deputy Secretary Whitehead: Then, Mr. President, my concern is if you declare material breach, you take an action for no recent justification. As Max Kampelman has said, they’ve backed off on the radar. It’s three to four years from being able to be completed. They’ve given indication that they may dismantle it. For us to take an escalatory move now will absolutely gain us nothing. It will only mean confrontation with no benefits. (S)

Attorney General Meese: But isn’t it logical to do this at the ABM Treaty Review? (C)

Secretary Carlucci: If we don’t do it, it will take the pressure off the Soviets. (C)

Deputy Secretary Whitehead: But we can do it later if we need to. (C)

Attorney General Meese: If we don’t do it at the review, it’s going to be a lot harder to do later. (C)

General Herres: If you do it now, with nothing new happening, you’re going to lose credibility, because it’s very hard to explain if you do decide to declare material breach now why you did so. (S)

General Powell: Well, we have used the upcoming nature of the review for some time to kick this can down the road. (C)

Secretary Baker: Well, so therefore something has happened in the last few years. We’ve pressed them, and we’ve kind of kicked the can. (C)

Attorney General Meese: I can’t see why we can’t do this. Our response can be to deploy SDI. (C)

Mr. Miller: Let me ask you two questions then, Sir. One is what’s the judgment on how likely it will be that they take it down if we take this action; and secondly, is the Sofaer judgment on the material breach a matter of law, will it become public, and is that going to be a problem for us? (C)

Attorney General Meese: That’s ridiculous. It’s not a legal issue; it’s a political issue. (U)

Ambassador Kampelman: If I might, I’d like to just read a section from Sofaer. (Kampelman then read a quote from Sofaer that basically said “if we declare it now and don’t act, politically we may lose our rights to act later.”) (S)

Secretary Carlucci: We disagree. (C)

Attorney General Meese: This is not a legal issue. A material breach is simply a matter of fact. (C)

General Powell: Well, if the Soviets agree to meet us for a review next week, then we’re going to need to have guidance. General Burns wants to know whether his guidance is that he may threaten them at the review with the assurance that if they take no action, when he comes back, we will act. (S)

We will provide a decision document to the President later in the week, as needed, when we perhaps hear from the Soviets. (C)

The meeting ended at 11:43 a.m.

[The subject changed and they continued for about 10 more minutes on a different subject.]

1. Source: National Security Council, National Security Council Institution Files, Box SR–113, 0193. Secret. Brackets, except those indicating material not declassified, are in the original. The meeting took place in the White House Situation Room. Heiser and Linhard sent the minutes to Stevens under a July 14 covering memorandum, requesting that Stevens approve the minutes for the record. (Ibid.)
2. See Document 261.
3. See Tab 1, Document 265.
4. See Tab 2, Document 265.
5. Not found.
6. Documentation on Carlucci and Yazov’s meetings in Bern and Moscow in 1988 are scheduled for publication in Foreign Relations, 1981–1988, vol. XLIV, pt. 2, National Security Policy, 1985–1988.