HOW CLINTON PRESERVES THE ABM TREATY

Shortly after President Clinton took office, the Administration began efforts to preserve the ABM Treaty, despite the collapse in 1991 of America's only partner in this treaty, the Soviet Union.⁴ It has taken premature and inappropriate diplomatic steps to achieve this goal. One of its more aggressive steps occurred on September 26, 1997, when a U.S. delegation led by Secretary of State Madeleine Albright signed three agreements in New York that relate to the ABM Treaty and require the Senate's approval prior to ratification and implementation.⁵

The Administration has acknowledged that it must transmit these agreements to the Senate before they take effect, but it has yet to do so. Worse, despite the lapse of the ABM Treaty in 1991, the Administration insists on honoring its restrictions on missile defenses. The 1997 agreements with four former Soviet states--Belarus, Kazakhstan, Russia, and Ukraine--are an attempt to implement a new treaty that would impose ABM Treaty-style restrictions on the U.S. military and retard progress toward the deployment of an effective missile defense system for America.

The most important of the 1997 agreements is a Memorandum of Understanding (MOU) that multilateralizes the old ABM Treaty between the United States and the Soviet Union to five states. If the Senate approves it, this agreement not only would revive the ABM Treaty's restrictions on missile defense, but also would serve as the legal foundation for the other agreements. If the Senate were to reject this agreement, the Administration's efforts to impose permanent ABM Treaty-style restrictions on the U.S. missile defense effort would fail, and there would be no need to consider the other two agreements.

The second 1997 agreement addresses the difference between defenses against long-range (strategic) missiles, which had been subject to ABM Treaty restrictions, and shorter-range (theater) missiles, which were not subject to ABM Treaty restrictions. Theater defenses are needed to protect U.S. and allied troops in battle. The ABM Treaty (and by extension the MOU) had failed to define "strategic" or "theater" defenses.

The second agreement is known as a demarcation agreement because it establishes a dividing line between systems that are subject to MOU restrictions and those that are not. It took the form of an "agreed statement," which means that the MOU partners would apply its restrictions in accordance with this second agreement. This demarcation agreement states that theater defense systems with a maximum speed of less than 3 kilometers per second are not subject to ABM-style restrictions under the MOU as long as two conditions are met:

• First, such a system may not be tested against target missiles with speeds over 5 kilometers per second or ranges of more than 3,500 kilometers.

• Second, it may not be deployed in space.

The third agreement is another agreed statement on demarcation. It concerns interceptor missiles for theater defense with speeds of more than 3 kilometers per second. These faster interceptors would not automatically be assumed to be exempt from the MOU's ABM Treaty-style restrictions. Rather, the states would be left to enforce the MOU restrictions so that their non-ABM systems would not be equipped with ABM capabilities. Both agreed statements would enter into force with the MOU.

This last agreement and a unilateral statement issued by the U.S. delegation at the signing ceremony in New York impose a wide array of restrictions on faster systems.⁶ Such systems may not be tested against target missiles with speeds in excess of 5 kilometers per second or ranges of more than 3,500 kilometers; and they may not be deployed in space without being seen as MOU-limited ABM systems.

The faster systems would be subject to a host of other restrictions, including the following:

• They may neither pose a "realistic threat" to strategic nuclear forces nor be tested to give theater defense systems such capability.⁷ This would ensure that theater defenses could not counter the longer-range missiles capable of striking U.S. territory.

• They may not be deployed for possible use against the theater missiles other parties have deployed. For example, the United States would be barred from deploying missiles to defend against the Russian SS-21 Scarab short-range missile.

• Their number and geographic scope of deployment would be limited.⁸

• They may not have interceptor missiles with speeds in excess of 5.5 kilometers per second (for land-based and air-based systems) and 4.5 kilometers per second (for sea-based systems). This reduces their effectiveness as theater defense interceptors.

• They may not be tested against missiles with multiple warhead and reentry vehicles deployed on strategic ballistic missiles.

All of the agreements' limitations agreed to in New York, if ratified by the Senate, would severely hamper missile defense.

ANOTHER AGREEMENT IN THE WORKS

The Administration recognized early last year that because its 1997 agreements with Russia, Belarus, Kazakhstan, and Ukraine would prevent the United States from meeting the escalating missile threat, they would not win the necessary support in the Senate. It therefore began to talk about the need to sign a new missile defense agreement with Russia that would permit a missile defense system to be deployed.

For example, according to a White House press release, on June 20, 1999, in Cologne, Germany, President Clinton and former Russian President Boris Yeltsin

agreed that they will resume discussions on START III and on the ABM Treaty in the fall. Now, this is very significant because for the first time the Russians have agreed to discuss changes in the ABM Treaty that may be necessitated by a national missile defense system were we to decide to deploy one.⁹

Since then, the Administration has frequently mentioned its ongoing efforts to amend the ABM Treaty in order to field a national missile defense system despite ABM Treaty-related limitations contained in its MOU and demarcation agreements. After Yeltsin resigned, the President began discussions with Acting President Putin; they have even discussed a possible summit on the matter.¹⁰

Possible Provisions in a New Agreement. Although formal negotiations on the possible new agreement have not taken place, it is not difficult to discern what the Administration hopes to include in it. Recent testimony by the head of the Ballistic Missile Defense Organization before two subcommittees of the House Armed Services Committee¹¹ indicates that the Administration most likely will seek the following provisions:

1. The United States would be permitted to field a missile defense system to protect its territory.
   This provision directly contradicts the intent and the terms of the ABM Treaty as it would be revived by the 1997 MOU.

2. A U.S. missile defense system would be permitted only at a single site that contained up to 100 interceptors for territorial defense.
   The ABM Treaty, if it were in force, would allow 100 interceptors at only one site, located either in North Dakota or in Washington, D.C. Article I of the ABM Treaty, however, explicitly prohibited the United States from giving this site interceptors that could provide "a defense of the territory of its country." The effect of the 1997 agreements, by reviving the ABM Treaty as amended in 1974, would be to limit the United States to a single site of between 20 and 100 interceptors. While this new provision would allow a territorial defense, as a practical matter, it might still prevent the United States from defending all of its territory against the full range of missile threats. For example, missiles could be launched from ships off the U.S. coast that this system would be unable to counter.

3. The United States would be allowed to change its one treaty-designated long-range missile defense site from North Dakota to Alaska.
   The ABM Treaty as modified by the 1974 Protocol allows only a single site of interceptors that may be deployed in North Dakota as the site designated by the United States under the treaty. The 1997 agreements would continue the ABM Treaty provision that allows the United States to locate its sole long-range missile defense site in North Dakota. This new agreement, however, would permit the United States to change this prior restriction from North Dakota to Alaska.

4. The use of external sensors, particularly satellite sensors, would be allowed only indirectly for missile defense.
   The ABM Treaty is ambiguous regarding the use of sensor satellites in ABM battle management. Many critics of missile defense interpret sensor satellites as substitutes for ABM radar, and therefore prohibited by Article V of the ABM Treaty if it were still in force. Because the Administration has not clarified whether the 1997 agreements would prohibit the use of satellite sensors in missile defense, this new provision would remove any doubt. It explicitly would permit the use of external sensors on satellites for national missile defense as long as the satellites are limited to an adjunct role--that is, they are deployed primarily for a purpose that could contribute only indirectly to national missile defense. As such, the sensors could detect a launch and communicate that information to a ground station; they could not collect targeting information on launched ballistic missiles and provide that information to interceptors.

A MORE EFFECTIVE MISSILE DEFENSE SYSTEM

Without all the restrictions that the Administration's agreements would impose on missile defense, the United States could deploy a system that is not only more effective and more territorial, but also less costly. The details of such a system are described in Defending America: A Plan to Meet the Urgent Missile Threat, a report by a commission of missile defense experts assembled at The Heritage Foundation. This system clearly would be capable of defending Americans, U.S. troops abroad, and U.S. allies against a ballistic missile attack in the near term.¹³

Specifically, the system proposed in Defending America would provide global coverage. It requires the U.S. military, first, to upgrade the Navy's Upper Tier system currently under development to defend against theater range missiles. The initial deployment would field 650 interceptor missiles on board the Navy's 22 Aegis ships, which would be situated in strategic locations around the globe. The second stage would involve deploying the military's Brilliant Eyes sensor satellite system, and later a combination of space-based interceptors and space-based lasers, to provide a layered defense.

But this system cannot be deployed unless the Administration removes the strictures it imposes by adhering to the old ABM Treaty. Unfortunately, its agreements, which involve even more severe restrictions on theater missile defenses, would mean that an effective system would be well beyond America's reach.

Deploying an upgraded Upper Tier system to protect U.S. territory would counter three specific provisions in the Administration's agreements:

• A provision limiting the deployment of national missile defense systems to a single location;

• A provision prohibiting development, testing, or deployment of national missile defense systems on sea-based and space-based platforms; and

• A provision barring the upgrading of theater defense systems to give them a national missile defense capability.

In addition, deploying space-based interceptors and space-based lasers would violate the single-site provision and the space-based provision.

Defending America offers a rational plan for meeting the nation's missile defense needs, yet the primary obstacles to implementing it are the Administration's unratified agreements and unilateral adherence to the ABM Treaty's limitations. Compared with the Heritage Commission's plan, the Administration's plan would result in a national missile defense system that is both more expensive for the level of protection it would provide and inadequate because it could not protect against certain kinds of missiles.

WHAT THE SENATE SHOULD DO

The Clinton Administration, in negotiating agreements on missile defense with Russia, should consult with the Senate. Because its agreements face certain rejection, the Administration may try instead to convince the Senate that failure to approve its agreements on missile defense would mean that the United States could never field a national missile defense system. But this argument is based on the false premise that the ABM Treaty is still legally binding on America. In fact, the Senate's rejection of the Administration's agreements would confirm that the treaty has expired and allow an unfettered U.S. missile defense program to proceed.

The Administration also may argue that Senate rejection of its agreements would kill prospects for the Strategic Arms Reduction Talks (START) with Russia to obtain additional reductions of offensive nuclear weapons. But further progress on START is now in Russian hands. The Senate has approved START II, and START III has not been negotiated. If the START process should falter, it is Russia's fault. The Duma has not approved START II, and Russia has threatened to withhold its ratification if the United States does not ratify the three agreements signed in New York. Another agreement would fall under the same threat.

The Senate leadership should take immediate action to resolve this dilemma. Specifically, it should:

• Demand that, before any formal negotiations to amend the ABM Treaty begin, Russia appropriately be made a party to that treaty.

President Clinton has acknowledged that Russia is not a party to the ABM Treaty.¹⁴ Indeed, there are no legally recognized foreign parties to the ABM Treaty at this time. This fact supports the growing public support for the argument advanced by policymakers, legislators, and lawyers that the ABM Treaty is no longer legally binding.¹⁵

Because Russia is not a party to the ABM Treaty and cannot assume the Soviet Union's obligations under that treaty, the Administration must discuss missile defense issues with Russia strictly on an informal basis.¹⁶ Although the Administration signed the Memorandum of Understanding with Russia and three other states in 1997 to make them parties to the ABM Treaty, which would effectively revive the treaty, it cannot ratify or implement the terms of this agreement without the Senate's consent.¹⁷ It has yet to submit that MOU to the Senate to obtain its consent or to make Russia a party to the treaty. Senate leaders must make it clear to the Administration that they will view any formal negotiations with Russia to amend the ABM Treaty as a step toward implementing the MOU without Senate consent, which would be illegal.

• Insist that the Administration adhere to the ABM Treaty's requirement that amendments be negotiated in the Standing Consultative Commission (SCC).

If the Administration wants to pursue formal negotiations on amendments to the ABM Treaty, it must follow the treaty's requirement that such amendments be negotiated through an implementing body called the Standing Consultative Commission.¹⁸ Because the ABM Treaty is no longer binding and Russia is not a party to it, Russia may not participate formally in SCC deliberations at this time.¹⁹ For this reason, the Administration's current diplomacy with Russia on missile defense, which is taking place outside the SCC, is informal at best. To make the process formal and amend the treaty, the Administration must go through the process of reviving the ABM Treaty and making Russia a party to it.

• Request that the President submit the 1997 missile defense agreements to the Senate.

Senate leaders need to be clear that, in principle, they support formal negotiations with Russia concerning missile defense issues and are insisting only that the Administration follow the proper constitutional and international legal procedures. If the Administration wants to move expeditiously toward initiating formal negotiations with Russia to amend the treaty, its proper course of action is to submit the 1997 agreements to the Senate.
Failure to do so only delays the process.

• Support immediate U.S. negotiations with Russia on missile defense that would be conducted outside of the ABM Treaty's legal framework.

There is nothing to bar the Administration from engaging Russia in formal negotiations on the general topic of missile defense. But doing so within the legal framework of the ABM Treaty--which requires that any discussions on amending or implementing the treaty be conducted in the Standing Consultative Committee--creates procedural impediments.

An appropriate forum for conducting negotiations on missile defense is the Defense and Space Talks with Moscow that President Clinton broke off in 1993. These talks, first with the Soviet Union and then with Russia, focused on achieving a cooperative transition to deploying missile defenses in the absence of any ABM Treaty restrictions. The assumption underlying these talks was that Washington and Moscow would want to deploy missile defenses to meet the growing threat and that both eventually would abandon the ABM Treaty. These talks were purposely conducted outside of the Standing Consultative Committee for this reason, but also because Washington wanted to use the SCC specifically and appropriately to address Soviet violations of the treaty.

Reviving the Defense and Space Talks today would remove any uncertainties about the treaty's legal standing from current negotiations with Russia. It would allow the United States and Russia to take a cooperative approach to doing exactly what the ABM Treaty prohibited--deploying missile defenses in the face of the growing threat from the proliferation of weapons of mass destruction around the world. The talks could include, for example, exchanges of information, data declarations, transparency measures, shared assessments of the missile threat, and even a sharing of the benefits of the technology.

CONCLUSION

The Clinton Administration, in its efforts to negotiate with Russia on missile defense, seems likely to commit the same mistakes it made in negotiating the Comprehensive Test Ban Treaty in 1999. It unwisely chose not to solicit the advice of the Senate prior to signing the CTBT, an agreement that would have prohibited the United States from conducting explosive tests of nuclear weapons.²⁰ The CTBT was neither effectively verifiable nor enforceable. As Senator Richard Lugar (R-IN) stated, the treaty failed to meet the necessary standards for effective arms control.²¹ As a result, the Senate was forced to reject it.

The Senate can no longer afford to wait for the President to solicit its advice on missile defense. The Constitution gives the Senate a specific role both in advising the President on treaty matters and in consenting to the final products negotiated by the Administration. The Senate should not shy away from its responsibility. Moreover, it should use its constitutional authority to offer forceful and uncompromising advice to the Administration on the likely effects of its diplomacy with Russia.

To enable missile defense to move forward, the Senate should insist that any treaty provide the kind of effective defense against missile attacks that President Clinton at least rhetorically claims to want. Such a defense is not possible under a diplomatic arrangement that would revive the restrictive ABM Treaty. The Senate, by acting now, will not have to reject another faulty arms control treaty later. Moreover, it would enable missile defense to move forward so that millions of Americans will no longer be defenseless against missile attack.

The Senate should insist that the Administration follow the proper constitutional and international legal procedures when negotiating, drafting, signing, and ratifying any missile defense treaty. And President Clinton should ensure that all diplomacy with newly elected Russian President Putin on the issue of missile defense is conducted outside of the framework of the ABM Treaty.

Baker Spring is a Research Fellow in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.