69. Memorandum From the Special Advisor to the President and Secretary of State on Arms Control Matters (Nitze) to the President’s Assistant for National Security Affairs (McFarlane)1
SUBJECT
- ABM Treaty Interpretation
1. ISSUE.
Statements given to the Congress and to our Allies up until your television appearance yesterday,2 have taken the position that the prohibitions of Article V apply to ABM systems and components and that those components are ABM components as defined in Article II and components capable of substituting for such ABM components whether or not they are based on “other physical principles.” Your statement yesterday could be interpreted as taking the position that Agreed Statement D approves and authorizes research, testing, and development of defensive weapons based on “other physical principles” regardless of the prohibitions of Article V. The issue is which of these interpretations, and in what context, it would be wise for the US, at this time, to adopt.
2. Context. There are several contexts in which the issue is pertinent:
a. From the legal point of view the issue is ambiguous. Agreed Statement D on its face contemplates the “creation” of “ABM systems based on other physical principles and including components capable of substituting for ABM interceptor missiles, ABM launchers, or ABM radars which are created in the future . . .” The Soviets and the US agree that the word “create” can include research, development and testing. One body of lawyers asserts that the general sense of the Treaty as a whole dictates that the permission “to create” in Agreed Statement D is linked by the intent of Articles I, II, III, IV, and V that ABM components, and components capable of substituting for them, whether or not based [Page 240] on other physical principles, should not be developed or tested unless they are fixed land-based systems tested in accordance with provisions of Articles III and IV. Another body of lawyers says that this does not legally follow from the language of the Treaty or from the negotiating record.
The negotiating record demonstrates that the US wished strict controls on futuristic systems and the Soviet Union resisted that attempt and only reluctantly agreed to the limitation on deployment of futuristic systems as provided by Agreed Statement D. It is further evident that the Soviet Union has not accepted as binding anything beyond the obligation assumed by it under the Articles of the Treaty and understandings to which it has specifically agreed in writing. The US has fostered a broader interpretation of the Treaty linked to the general intent of the Treaty, particularly the intent expressed in Article I, and spokesmen for the Executive Branch have in the past advocated a broader reading than a narrower one.
It should be noted that Agreed Statement F specifically permits large phased array radars which have as their purposes tracking objects in outer space or for use as national technical means of verification. There is no qualification in Agreed Statement F on this exception. Our assertion that the Krasnoyarsk Radar is a violation depends upon a broader reading of Agreed Statement F within the intent of the treaty as a whole; the Soviet interpretation rests upon a narrower reading of Agreed Statement F by itself. It is therefore not self-evident that the US will gain by a reading of the Treaty that narrowly focuses on the wording of individual sentences isolated from a consideration of other provisions of the Treaty.
b. In the context of negotiating with the Soviet Union, it would be prudent at this stage to use an interpretation of the Treaty which permits the planned $26 billion, five-year research and testing program, outlined in the 15 March 1985 report to Congress on the Strategic Defense Initiative.3 However, the traditional interpretation suffices for this purpose, even if the Congress provides all of the funds requested. It would also be advisable to preserve at this time the basis for asserting that the Krasnoyarsk Radar is an evident violation of the Treaty which must be corrected. If in the future the Soviets do not come into compliance with the ABM Treaty, we may wish to rely upon a reading of the Treaty that gives us greater freedom with respect to systems based on other physical principles that that which was the basis for the March 15th report to the Congress.
c. There is a question whether or not this is the time in our relations with the Congress and our allies formally to change our position [Page 241] from the past reading to a new and more permissive reading as to the limitations of the Treaty. Clearly, a more permissive reading could give greater scope and freedom to the SDI testing and development program than that contemplated by the March 15th report. OSD is strongly in favor of asserting such flexibility now. The opposing view is that there is no sense in causing a major issue with the Congress and our allies and with the Soviet Union at this time by insisting upon a reading which we will not need to use for some time in the future.
3. Conclusion. I believe we should assure the Congress and our allies that we do not intend to expand the SDI program beyond the scope described in the March 15 report to the Congress. I believe we should take the position that the limitations on that program illustrate the conservative position we are taking in order to be sure that the SDI program is fully within the limitations of the Treaty. The continued support of the Congress and our allies is essential in the period ahead of us.
Special Advisor to the President and the Secretary of State on Arms Control Matters
- Source: Department of State, Ambassador Nitze’s Personal Files 1953, 1972–1989, Lot 90D397, October 1985. Secret; Sensitive.↩
- Reference is to McFarlane’s October 6 appearance on Meet the Press, in which he stated: “I think that the President is guided by the ABM Treaty, and the terms of that treaty are very explicit in Articles II, III, IV, and V, plus Agreed Statement D. They make clear that on research involving new physical concepts, that that activity, as well as testing, as well as development, indeed, are approved and authorized by the treaty. Only deployment is foreclosed, except in accordance with Articles XIII and XIV. So our program is compatible with the treaty and will remain so.” For the transcript of his remarks, see Department of State Bulletin, December 1985, pp. 32–34.↩
- Reference is to Report to the Congress on the Strategic Defense Initiative. (Washington: Strategic Defense Initiative Organization, Department of Defense, April 1985)↩