One alternative is a narrower interpretation of the Treaty which has been
generally asserted by the US since the
Treaty’s ratification. This interpretation, which we hold today, would
permit research, but restrict some large scale testing and prohibit
development of many SDI systems based on
newer technologies under the Treaty. This interpretation would not inhibit
us from pursuing our SDI research as
currently planned for a number of years, albeit at some price in terms of
additional program cost, time and increased uncertainty. On the other hand,
it does impose restrictions that we will have to face at some point if the
research is successful. There is little evidence that the Soviets have ever
agreed to this interpretation—although they may wish to grasp it now in an
effort to block SDI. The Congress and our
allies are familiar with this interpretation, and any change from it will
surely cause problems with which we will have to deal.
The other alternative is a broader, and somewhat more literal interpretation
of the Treaty text. If adopted, it would permit us to go beyond research to
testing and development (but not deployment) of defensive systems based on
new technologies. The benefits to increased flexibility in pursuing the
SDI program are clear and it is more
consistent with your stated view of your intent with respect to the SDI program. On the other hand, should we move
in this direction, even if handled well, it is very likely that certain
elements of Congress will react strongly and attempt to place legislative
restrictions on our freedom of action, attacking SDI funding or strategic force modernization funding in
retaliation. We should also expect that some allies will make an issue of
this.
Timing is important if we are to accept a new, more broad interpretation.
Should we move towards a broader interpretation at this time, we will face
handling the likely objections of members of Congress during the
appropriation cycle. We may also face a debate in the alliance on this issue
just prior to the Geneva meeting. The Soviets will attempt to feed this
debate to drive wedges where possible. On the other hand, there will never
be a good time to step up to this. There is merit in the argument that if we
are to shift to a broader interpretation, we should do it well before the
research program demands that we do. And since, unfortunately, the issue is
already in the press, we may never recover the opportunity to shift to this
broader interpretation if we fail to seize this moment.
The long and short of this is that I feel that there is sufficient ambiguity
in the Treaty and the negotiating record to support the broader
interpretation should you choose to pursue it. This does not mean that there
will not be some legal challenges made, but that there are sufficient
grounds to legally fight these challenges. At the NSPG I will go through the articles of the Treaty and explain
how the broader interpretation could be presented.
The critical issue that you must decide is whether this broader
interpretation is necessary to achieve the goals you have set for the
program under the ABM Treaty, and if so, if
now is the time to take this step.
I believe that there is general consensus at the senior levels of the
Administration that the legal case for the broader interpretation exists and
that, if supportable, it would put us in a much better position to pursue
the SDI research. I also believe that this
interpretation is fundamentally more consistent with your views of the
program. However, the broader interpretation is not necessarily needed now
to permit the research we plan (and likely not needed for a few years at
least). It is on this last issue that my recommendation hinges most
importantly because it is very unclear whether we can sustain the needed
support for the SDI program were we to
publicly adopt this new interpretation now.
Tab A (1)
Paper Prepared in the National Security Council4
Washington, October 10, 1985
INTERPRETING THE ABM TREATY RESTRICTIONS
Issue: How should the U.S. interpret the ABM
Treaty’s restrictions on systems based on “other physical principles”
(i.e., systems other
[Page 252]
than
traditional ABM interceptor missiles,
launchers and radars)? Should the USG
interpret the Treaty as applying the prohibition on “the development,
testing and deployment of sea-based, air-based, space based or mobile
land-based ABM systems and components”
to systems based on “other physical principles” as well as those on
which ABM systems were based at the
time the ABM Treaty was signed?
Introduction: Since 1972, a variety of U.S. officials have publicly and privately
maintained that Article V of the ABM
Treaty prohibits development, testing and deployment—but not research
on—ABM systems and components that are not fixed, land-based and
regardless of whether they are based on new or older technologies or
principles. It is not clear that the Soviets shared this view when the
Treaty was signed.
Recent study of the Treaty and the negotiating record suggest that a
broader interpretation (more literal) of the Treaty is appropriate. This
interpretation maintains that the Treaty permits research, testing and
development (but not deployment) of non-fixed ABM systems or components which are based on other physical
principles.
The central choice is whether we should move to this broader
interpretation at this time.
This paper addresses the generally accepted Treaty terminology, the two
interpretations and their supporting rationale. Relevant ABM Treaty provisions are attached for
your reference.
ABM Treaty
Terminology
The ABM Treaty provisions regarding
“components” can be most clearly understood by considering the three
categories of ABM systems contemplated
by the Treaty.
- a)
- “Current” systems. These are systems
consisting of fixed, land-based components that composed the
“current” systems at the time the Treaty was negotiated. Article II
defines such components as ABM
interceptor missiles, ABM launchers
and ABM radars. The deployment of
such components is limited to locations and numbers specified in
Article III and such components may be tested in conformity with
Article IV.
- b)
- Article V systems. Article V deals with
ABM systems and components that
are mobile land-based, sea-based, air-based, and space-based. Such
components would include ABM
interceptor missiles, ABM launchers
and ABM radars as defined by
Article II and devices capable of substituting for one or more of
such ABM components. Article V,
paragraph 1 provides that such systems or components may not be
developed, tested or deployed; research on such systems or
components is not prohibited.
- c)
- ABM systems
based on “other physical principles” addressed in Agreed
Statement D. These are ABM
systems with components based upon physical principles other than
those used in ABM systems “current”
at the time the Treaty was negotiated. These would be devices
capable of substituting for ABM
interceptor missiles, ABM launchers
or ABM radars. Articles III and IV
and Agreed Statement D allow the research, development and testing
of such fixed, land-based components, but prohibit their deployment
absent prior discussion pursuant to Article XIII and agreement to
amend the Treaty in accordance with Article XIV.
Narrower Interpretation
Under the interpretation generally held since 1972, with the above
terminology as background, the ABM
Treaty prohibits the development, testing, and deployment of sea-based,
air-based, space-based, and mobile land-based ABM systems and components based on physical principles
other than those on which ABM systems
were based at the time of signature of the ABM Treaty (as well as ABM
systems and components based on then-current technology).
This interpretation is supported by the following argumentation:
- —
- Article II of the ABM Treaty
defines an ABM system as a
“system to counter strategic ballistic missiles or their
elements in flight trajectory.” It states that ABM systems “currently consist of”
ABM interceptor missiles,
ABM launchers and ABM radars. Thus, Article II
indicates that there could be other types of ABM systems or components
developed in the future.
- —
- Article III of the Treaty prohibits the deployment of ABM systems except that fixed
land-based ABM systems
utilizing technology current in 1972 can be deployed at specific
sites under specific limitations.
- —
- Article V, paragraph 1, prohibits the development, testing and
deployment of other than fixed land-based ABM systems. Like Article III,
Article V is all encompassing. Article II makes clear that
Article III and Article V apply to all types of ABM systems regardless of the
technology utilized.
- —
- In agreeing to the language of Article V, 1. the U.S. and Soviet negotiators also
agreed that the text covers “any type of present and future
components.” Thus, the development, testing and deployment of
other than fixed land-based ABM
systems or components based on other physical principles is
prohibited by Article V, 1.
- —
- Agreed Statement D is by its terms associated with Article III
and provides that should types of ABM systems appear in the future based on other
physical principles, they cannot be deployed at these
[Page 254]
permitted sites
without amendment of the Treaty—otherwise the balance
established by Article III would be upset.
Broader Interpretation The alternative, broader
interpretation holds that the ordinary meaning of Agreed Statement D is
that “specific limitations” on ABM
systems “based on other physical principles” will be “subject to
discussion.” Moreover, by implication, the Treaty—apart from Agreed
Statement D—does not provide “specific limitations” on sea-based,
air-based, space-based or mobile land-based systems, based on physical
principles other than those current at the time the Treaty was
signed.
This broader interpretation is supported by the following argumentation:
- —
- The use of the phrase “currently consisting of” in Article II
can be read to mean that all future variants of existing ABM systems and components are
covered by the Treaty.
- —
- In that case, Article V would prohibit testing, development,
and deployment of all mobile systems using new
technologies.
- —
- On the other hand, if Articles II and V had this effect, there
would not be a need for the undertaking in Agreed Statement D to
discuss “specific limitations” on
future ABM systems “based on
other physical principles.”
- —
- The fact that “specific limitations” on future systems remain
“subject to discussion” indicates that the Treaty by itself does
not limit these systems.
- —
- Furthermore, the text of Agreed Statement D is unclear as to
what rules, if any, apply before the Parties reach agreement on
“specific limitations” and amend the Treaty accordingly.
- —
- The ambiguity should be resolved by looking at the negotiating
record, not at subsequent unilateral
statements by U.S. officials.
The negotiating record contains conflicting evidence, but the
dominant evidence is that the Soviets never committed themselves
to limitations on future systems.
Tab II
Talking Points Prepared in the National Security Council6
PROPOSED TALKING POINTS
INTRODUCTION
— Mr. President in the past two weeks you have received briefings on our
own SDI research program and, more
recently, on the considerable effort that the Soviet Union has made in
the area of strategic defense. Both of these perspectives have been
accompanied by an underlying set of constraints which derive directly
from the ABM Treaty.
— Today, I would like to provide an overview of the various provisions of
the ABM Treaty. As you know, the SDI program, from its inception, has been
designed to be fully in compliance with the provisions of the
Treaty.
— At the conclusion of my overview I will provide you with a staff
interpretation, and rationale therefore, which addresses the Treaty’s
limitations on research, testing, development and deployment of ABM systems or components based on other
physical principles—that is—based on technology which was not current in
1979 when the Treaty was signed.
— This interpretation has been long overlooked, and it probably would
never have come to light if we hadn’t honestly been searching
[Page 257]
for the boundaries of the
Treaty, within the context of the newly emerging technologies of SDI.
OVERVIEW OF TREATY TEXT
— The overview will be in order by Treaty articles, so you may want to
follow along with the texts in your red folders (Tab
A).
— Article I of the ABM Treaty of 1972 states its central purpose—to prohibit
deployment of “ABM systems” which are defined
in Article II, except for certain deployments
specifically permitted by Article III, or
deployments otherwise agreed upon in accordance with provisions for
ongoing review and amendment of the Treaty. Thus, Article I(2) states:
Each Party undertakes not to deploy ABM systems . . . except as provided for in Article III of this Treaty.
— Article II defines the terms “ABM system” and
ABM “component.” These terms are
the subject of limitations set forth in other provisions of the Treaty.
Under Article II(1):
- an ABM system is a system to
counter strategic ballistic missiles or their elements in flight
trajectory, currently consisting of:
- (a)
- ABM interceptor
missiles . . .;
- (b)
- ABM launchers . . .;
and
- (c)
- ABM radars. . .
.
— Paragraph 2 of Article II identifies the listed
elements—ABM interceptor missiles, ABM
launchers, and ABM radars—as “ABM
system components.”
— Article III of the Treaty specifies the
permitted deployments of ABM systems,
consisting of two complexes, one to defend a “Party’s national capital”
and the other to defend an area containing “ICBM silo launchers.” A 1974
Protocol reduced the number of permitted complexes from two to one for
each Party at their choosing. In pertinent part, Article III states that:
Each Party undertakes not to deploy ABM systems or their components except that: . .
.within one ABM system deployment
area having a radius of one hundred and fifty kilometers . . ., a
Party may deploy: (1) no more than one hundred ABM launchers and no more than one
hundred ABM interceptor missiles at
launch sites, and (2) ABM radars
[with specified limits on the number and characteristics of these
radars].
— Other provisions of the Treaty allow upgrading of these permitted
ABM systems, subject to certain
restrictions: “modernization and replacement of ABM systems or their components may be carried out” (Article VII), except that “Each Party undertakes
not to develop, test, or deploy ABM
launchers for launching more than one ABM interceptor
[Page 258]
missile at a time from each launcher . . . or semiautomatic or other
systems for rapid reload of ABM
launchers” (Article V(2)).
— Parenthetically I would only note that the Soviet Union has constructed
and continuously upgraded an ABM
defense of Moscow and has violated the restrictions on radars by
construction of a large, phased-array radar at Krasnoyarsk. Meanwhile,
the United States in 1975 deactivated its only deployed ABM systems at Grand Forks, North
Dakota.
— Article IV clarifies that the Article III limitations on deployment do not “apply to ABM systems or their components used for
development or testing, and located within current or additionally
agreed test ranges.”
— Article V(1) of the Treaty provides that:
Each Party undertakes not to develop, test, or deploy ABM systems or components which are
sea-based, air-based, space-based, or mobile land-based.
— Article V prohibits development, testing and
deployment of mobile systems. I will be returning to the issue of
whether this provision applies to only the systems or components current
when the Treaty was signed or also applies to the creation of new
systems or components based on other physical principles. In either
case, Article V restricts permitted deployments
of ABM interceptor missiles, launchers
and radars under Article III to fixed, land-based
systems.
— Article VI deals with prohibitions on giving
non-ABM missiles, launchers and radars capabilities of ABM components and places restrictions on
future early warning radars.
— Articles VIII through XII of the Treaty deal
with matters of implementation and compliance, including dismantlement
of deployed ABM systems “in excess of
the numbers or outside the areas specified in this Treaty” (Article VIII), a prohibition on “transfer to
other States” and deployment of ABM
systems “outside the national territory” of the Parties (Article IX), agreement “not to assume any
international obligations which would conflict” with the Treaty (Article X), and agreement to “continue active
negotiations for limitations on strategic offensive arms” (Article XI).
— Article XII provides that, to monitor Treaty
compliance, “each Party shall use national technical means of
verification.” Further, under Article XII, “Each
Party undertakes not to interfere with the national technical means of
the other Party” and “not to use deliberate concealment measures.”
— Article XIII and XIV create a mechanism for
ongoing review and amendment of the Treaty. Article
XIII provides for the establishment
[Page 259]
of an SCC which
serves as a forum for representatives of the Parties to meet regularly
and consider matters of compliance, interpretation, exchange of
information, amendment, as well as “possible changes in the strategic
situation which have a bearing on the provisions of this Treaty.”
— Article XIV states that “Each Party may propose
amendments to this Treaty” and further provides that “the Parties shall
together conduct a review of this Treaty” at five-year intervals for as
long as the Treaty remains in force. Thus, the ABM Treaty is expressly made an adaptive instrument. The
Parties are not locked into a regime which proves to be destabilizing or
obsolete.
— Finally, the Treaty contains a safeguard against non-compliance or a
shift in the strategic balance which threatens the vital security
interests of either Party. Article XV provides
that:
Each Party shall, in exercising its national sovereignty, have the
right to withdraw from this Treaty if it decides that extraordinary
events related to the subject matter of this Treaty have jeopardized
its supreme interests.
— In this quick overview of the Treaty provisions I have tried to deal
with the plain meaning of the Articles. The plain meaning certainly
represents—at a minimum—the agreement which was reached by the U.S. and Soviet Governments—uncluttered by
unilateral interpretations, individual expectations or just plain
wishful thinking.
— I mentioned wishful thinking because in my own mind, this is unique to
the U.S. ratification process. It is
entirely conceivable that in the interest of “bringing home the bacon”
some of our negotiators read well beyond the printed Treaty text in an
effort to try to convince the Congress—and themselves that they had
achieved mutual agreement.
THE NEW TECHNOLOGIES ISSUE
— Permit me now to present the case for the plain meaning of what
limitations are to be applied to systems based on “other physical
principles”; technologies which were not current at the time that the
treaty was signed in 1972.
— The ABM Treaty provisions dealing with
“current” and future technology can be most clearly understood by
considering the two broad categories of ABM systems contemplated by the Treaty.
— “Current” systems. These are systems and
components that comprised the “current” systems at the time the Treaty
was negotiated. Article II defines such
components as ABM interceptor missiles,
ABM launchers and ABM radars. The deployment of such
components is limited to locations and numbers specified in Article III and
[Page 260]
such components may be tested in conformity with
Article IV and these components cannot be
made mobile—sea, land or air based (Article
V).
— In the category of future technology, ABM systems based on “other physical principles” are only
addressed in Agreed Statement D. These are ABM systems with components based upon physical principles
other than those used in ABM systems
“current” at the time the Treaty was negotiated. These would be devices
capable of substituting in the future for ABM interceptor missiles, ABM launchers or ABM
radars.
— Agreed Statement D seems to imply that future systems based on other
physical principles may be “created” and therefore may be developed and
tested. However, in order to insure the fulfillment of the obligation
not to deploy ABM systems and their
components except as provided in Article III, the Agreed Statement
imposes a duty on the Parties to confer and agree to “specific
limitations” on these future systems before they are deployed.
— The use of the phrase “currently consisting of” in Article II could be read to mean that all future variants of
existing ABM systems and components are
covered by the Treaty. In that case, Article V would prohibit testing,
development, and deployment of all mobile systems using new
technologies.
— On the other hand, if Articles II and V had this
effect, there would not be a need for the undertaking in Agreed
Statement D to discuss “specific limitations” on
future ABM systems “based on other
physical principles.” The fact that “specific limitations” on future
systems remain “subject to discussion” indicates that the Treaty by
itself does not limit these systems.
— The negotiating history on this issue may be illustrative of what I
referred to earlier as wishful thinking. The U.S. had long sought a ban on deployment of future systems,
but did not seek to preclude development and testing. The Soviets
resisted any restrictions on future systems. After months of
negotiations they finally agreed to proscribe deployment of future
systems in Agreed Statement D since, without it
the Treaty would not operate to ban deployments
of future systems.
— The negotiating record has no significant support for the proposition
that Agreed Statement D limits the development or
testing of future systems. On the contrary, since it begins with the
prospect of their creation, these steps in bringing a system into
existence appear to be sanctioned.
— What is far from clear is the public record prior to ratification and
since. It is for this latter reason that we need to focus on the Treaty
text and the negotiating record to find the mutually agreed
interpretation.
[Page 261]
DISCUSSION
— In my estimation, we have a strong legal case and should not hesitate
to take it to the Congress and our Allies—on its own merits.
— At this point I would like to ask each of you in turn to focus on the
interpretation I have just given, and provide your views on how we
should transition to this operative interpretation as it applies to our
own SDI program.
— George, would you care to
lead?
— Cap, I believe you have some views on this.
— Paul, you have been most intimately involved with the ABM Treaty from the beginning. What do you
think?
— Ken, your views?
— Bill (Crowe), it seems to me
that you have studied a little law; do the Chiefs have anything to
add?
[After the discussion we would recommend that you summarize before
proceeding]
[If consensus is reached, as it may well be, recommending the simple
assertion of a broader interpretation use the following remarks to
permit the President to acknowledge this consensus and announce his
decision modifying the consensus along the lines of the draft NSDD if he agrees]
— Mr. President, it appears that we have consensus that we have a strong
case to announce the broader interpretation. Do you agree with a
decision to do so now?
[If no consensus is reached, turn to the President for his views]
— Mr. President, we don’t have consensus here, do you need additional
time to consider this or do you have a decision?
IMPLEMENTING THE DECISION
— As we all are keenly aware, execution is 95 percent of the solution. In
this instance delay can only hurt our case, because we will be viewed as
being unsure of ourselves.
— I think that we need to inform Congress, our allies and the press about
this on our own terms; they must be informed of our deliberations on
this matter and the decision that the President has made.
— With respect to the press, what do you all think about an on the record
briefing by perhaps the State Department Legal Adviser, Judge Abe Sofaer, on Tuesday? Perhaps Paul,
you could consider capturing the decision in your talk next week in San
Francisco?
[Page 262]
— With the Press briefing, next week the real interest will be on the
Hill. We will need a good
plan to manage that activity. George, would you be willing to put some of your best
people on this, and get, working with Defense and others, a plan for
handling this in Congress over for the President to review Monday so
that we can implement Tuesday?
— We will also need to inform our allies. I think this should be done via
message on Monday. Views?
— Between now and Tuesday though we will have to move out in two very
important directions. Before getting to the details of the Congressional
and Allied gameplans though let me spend a few minutes on the real
necessity of maintaining internal control and Administration cohesion on
this issue.
— This has been a very contentious issue. Any time that you call into
question something that has stood unchallenged for 13 years, you are
going to have to overcome a certain amount of bureaucratic momentum to
continue to view things the same way. In this instance I hope that we
can capture the high ground and actually improve the prospects for the
program on the Hill.
— For this reason it is very important that those of us in this room get
quickly to our staffs and lay out the arguments and announce the
decision. This is not the time to debate the points over again; it is
time to march off smartly together.
CLOSING REMARKS
— Mr. President do you have anything further to add? Fine, thank you all
for coming, an NSDD recording the
decision will be issued shortly.
