PROPOSALS FOR MAINTAINING MISSILE DEFENSE MOMENTUM

The missile defense bill now on its way to the White House mandates the deployment of a national missile defense system. It does not, however, recommend the kind of system (or architecture) that should be deployed. Rather, it implies that a full array of missile defense systems and technologies should be considered for selection based on effectiveness, costs, and availability.

In a study published last March, a commission established by The Heritage Foundation in 1998 to study missile defense proposed a specific architecture using a combination of sea-based and space-based systems.³ The recommendations that follow regarding the development of specific systems or technologies are derived from that study. They do not preclude the eventual inclusion of other systems or technologies in the NMD architecture. They also include means for overcoming the Clinton Administration's policy regarding the ABM Treaty, which stands in the way of the deployment of any effective missile defense system.

With these recommendations in mind, Congress should build on the general missile defense mandates in H.R. 4 and take steps to:

• Authorize the development and deployment of theater missile defenses that are capable of meeting the threat from North Korea.
  In August 1998, North Korea launched a Taepo Dong-1 rocket over Japan. The launch, which demonstrated North Korea's capacity to hit U.S. territory with a ballistic missile in the very near future, helped prompt Congress to adopt legislation establishing a policy of deploying a national missile defense (NMD) system. In its understandable and appropriate rush to address the rapidly emerging threat to American territory posed by this launch, however, Congress paid less attention to the fact that the Taepo Dong-1 also poses a threat to U.S. forces deployed in Guam or Japan.⁴ A missile defense deployed in the United States for the protection of the homeland would not provide protection to U.S. forces stationed in Guam and Japan in the event of war with North Korea. Congress needs to ensure that the theater missile defense systems in development are capable of providing defense against the Taepo Dong-1 missile in circumstances in which American lives are at stake.

Two theater missile defense systems are now in development under the Administration's Ballistic Missile Defense Organization (BMDO): the Navy Theater-Wide (NTW) system and the Theater High Altitude Area Defense (THAAD). Both systems, when deployed, could be positioned on or near Guam and Japan to provide protection for U.S. forces against certain kinds of missiles. Under the current development plans, however, both systems will be incapable of countering the Taepo Dong-1. The key characteristic of missiles that these defense systems are incapable of downing is their speed: The Taepo Dong-1 has a maximum speed of between 5 kilometers and 8 kilometers per second, depending on the size of the payload. Neither the NTW nor the THAAD system has been tested against a target missile with a speed exceeding 5 kilometers per second; nor are there plans to test either system against a target missile with a speed exceeding 5 kilometers per second at any time in the future.

This limitation is shortsighted, and Congress should demand a change in the test program for these two systems. Congress can require that both systems be tested against target missiles with speeds of no less than 7 kilometers per second. Further, it should establish a deadline; it should require that each system be tested against a target missile with the designated speed no later than the end of FY 2001 and that the BMDO take the necessary steps now to meet this deadline. Finally, Congress needs to ensure that both systems have the best opportunity to intercept the faster missiles in the designated tests. This can be done by requiring that timely modifications to both systems be made in the course of development. At a minimum, two modifications to either the NTW or THAAD system should be made:

The speed of the interceptors should be increased so that it is well above 3 kilometers per second. In the case of the NTW system, this means restoring the speed of its interceptor to 4.5 kilometers per second, the assumed speed of its interceptor in the system's original concept outline.

The interceptors should be allowed to receive targeting data during the designated tests from a variety of sensor systems that are external to those built into each system, including shipboard radar, ground-based radar, airborne sensors, and satellite sensors.

Demanding such capabilities and technology would ensure that the BMDO does everything in its power to see that U.S. forces deployed in Guam and Japan, as well as the people of Guam and Japan, are not left naked before the threat of a Taepo Dong-1 missile attack in the event of war with North Korea.

• Authorize the development and deployment of missile defenses that are capable of meeting the threat from China.
  As the Cox Committee report made clear, China's acquisition of advanced U.S. satellite technology through commercial ventures and U.S. nuclear secrets through espionage may enable its missile program essentially to skip a generation of development. China now is building weapons that could threaten the United States and its allies in Asia. Congress, therefore, should require tests of missile defenses, similar to those described above, against a target modern intercontinental ballistic missile. The tests should account for enhancements made possible by stolen U.S. technology to increase the missile's accuracy and to enable it to deliver multiple warheads.

• Authorize a resumption of the Defense and Space Talks with Russia and perhaps other nations.
  During the House and Senate floor debate on H.R. 4 and the Cochran-Inouye bill, Members of Congress expressed their desire that the United States establish a cooperative approach with Russia in the area of missile defense through negotiations.⁵ Such negotiations had been underway when the Clinton Administration took office; the Administration walked out of the Defense and Space Talks in 1993.

Congress can remedy this shortsighted mistake by authorizing a resumption of the Defense and Space Talks with Russia. Additional states could be included in these talks if that is deemed appropriate. But Congress needs to be clear about the appropriate venue for such negotiations, needs to define their purpose, and needs to ensure that the Senate's prerogatives are protected.

Congress should make clear that the Administration is to resume the Defense and Space Talks. This would ensure that the talks do not take place at the Standing Consultative Commission (SCC), a body established by the ABM Treaty with the Soviet Union to oversee the implementation of that treaty, address compliance issues, and consider amendments. The ABM Treaty is no longer legally binding.⁶ Neither Russia nor any other foreign state qualifies as a party to the ABM Treaty. Thus, the SCC itself lacks legal standing, and no state other than the United States may participate fully in SCC proceedings.

The Defense and Space Talks were not established under the legal authority of the ABM Treaty. Further, the SCC, during most of the period of the Defense and Space Talks, was limited to considering ABM Treaty implementation and compliance issues, not issues related to the development and deployment of missile defenses. Compliance issues were a particularly important consideration for the SCC at that time, because the Soviets were undertaking a variety of activities in violation of their ABM Treaty obligations.⁷ Resumption of the Defense and Space Talks, therefore, would not be hampered by the legal problems or serious political problems associated with the SCC.

Congress needs to define the essential purpose of the resumed Defense and Space Talks. First, any proposals to revive the ABM Treaty, either through a new agreement establishing state succession under the treaty or by otherwise amending the treaty, should be excluded from these talks under a mandate imposed by means of funding limitations. The prohibition in this mandate is appropriate for three reasons:

1. The ABM Treaty is no longer valid, and it is inappropriate to engage in negotiations to amend a treaty that has no legal standing;

2. Russia is not a party to the ABM Treaty today, and it is inappropriate for the United States to consider proposals for amending a treaty with a state that is not a party to it; and

3. The SCC, not the Defense and Space Talks, would be the appropriate forum for consideration of ABM Treaty amendments if the treaty were valid.

The appropriate subject for the Defense and Space Talks, therefore, is to explore the means for cooperation between the United States and Russia during their transitions to the deployment of missile defense systems. This would include such measures as the sharing of information on system development in order to prevent surprise, cooperation in addressing shared missile threats, and even sharing the benefits of missile defense capabilities. This is entirely consistent with the legislation adopted by Congress establishing a policy of deploying a national missile defense system. Indeed, such talks would be a tangible expression of this policy. Consistent with this mandate, these talks should not involve the development of proposals that would impose any limits whatsoever on the development, testing, and deployment of missile defense systems.

Finally, Congress needs to ensure that the Clinton Administration cannot interpret its mandate for resuming the Defense and Space Talks as prior approval of any agreement it may sign as a result of these talks. Congress should do this by requiring that any agreement reached in these talks must take the form of a treaty document, which is subject to the Senate's advice and consent before ratification.

• Authorize new management for the Space-Based Infrared System-Low (SBIRS-Low) program.
  Any effective missile defense system will require a constellation of sensor satellites capable of detecting missiles, tracking them in flight, and providing targeting data to anti-missile interceptors. The satellite constellation now in development for doing this is called SBIRS-Low.

Unfortunately, the Clinton Administration has been weakening the SBIRS-Low program and the Air Force has been mismanaging it. In its February 1, 1999, budget presentation for FY 2000, the Administration cut the much-needed funding for the program. The Administration announced at the time that it is deferring the first launch of a SBIRS-Low satellite for two years (from 2004 to 2006). This means that the full operational capability for these satellites will not be obtained until 2010. The Air Force imprudently reduced the number of contractors working on the system from two to one in 1996, thereby eliminating the benefits of a competitive environment. Then, recognizing its mistake, the Air Force brought back the second contractor in 1997. The Air Force announced on February 5, 1999, that it is canceling two near-term experimental flights that were designed to prove the viability of the
system and reduce technical risk.⁸ Absent the specific congressional directions made during hearings and floor debate to further this vital program, it is all but certain that even the limited progress that has been made thus far would not have been realized.

Congress, therefore, needs to be even more aggressive in making sure that its goals for the SBIRS-Low program are realized. It can do so by directing that the program be transferred from the Air Force to the Navy. Further, Congress should designate SBIRS-Low as a top national priority and direct that a streamlined management approach, similar to the approach used to develop the Polaris missile, be adopted. Achieving streamlined management would require directing the Navy to establish a special program office whose director would have authority to hire and fire people, spend money, and direct engineering. Congress also should make it clear that it expects this new office to require that the Naval Research Laboratory manage prototype development and that the Johns Hopkins University Applied Physics Laboratory have direct involvement in the project. Congress should sharply limit the oversight authority of the Office of the Secretary of Defense. Finally, in addition to restoring funding to the SBIRS-Low program, Congress should direct the Navy to seek to begin placing these satellites in orbit by the end of 2003.

• Require the President to certify that Russia is not a State Party to the ABM Treaty.
  The Clinton Administration's policy of honoring the 1972 ABM Treaty with the former Soviet Union is the single most important obstacle to the deployment of an effective missile defense system. The ABM Treaty barred either state from deploying a missile defense system to protect its national territory. It even barred the development and testing of certain kinds of anti-missile systems.

In pursuing this policy, the Administration has asserted that the treaty remains legally binding, despite the fact that the Soviet Union no longer exists. In a May 1998 letter to Representative Benjamin Gilman (R-NY) and Senator Jesse Helms (R-NC), the President stated that Russia, in lieu of the Soviet Union, is a party to the treaty.⁹ This statement, in turn, provides the foundation for its assertion that the ABM Treaty remains in force. But this statement is not true. Indeed, the Administration referred to Russia and other states participating in an October 1998 treaty review meeting as "sides participating in the ABM Treaty review," as a way to avoid designating any of them as parties to the treaty.¹⁰

The Administration's misleading claim is having a negative impact in the Senate and House of Representatives on the matter of proceeding quickly with deployment of a missile defense system. Some Members of Congress see such deployment as breaking a treaty commitment.¹¹ Indeed, it would entail breaking a U.S. commitment to the Soviet Union if the Soviet Union were still in existence and had not violated the treaty, which it did in a variety of ways,¹² but there is no such treaty commitment with Russia or any other country. Thus, deployment of a national missile defense system will not entail breaking any U.S. treaty obligation to any foreign state.

Congress needs to clarify the fact that the United States has no ABM Treaty obligation with Russia by requiring the President to certify that Russia is not a party to the treaty. Such certification would serve to change the political dynamic in the debate over deploying a national missile defense system. The charge that deploying NMD would break a U.S. treaty obligation with Russia would no longer be credible.

• Allocate no less than $70 million of the funds made available for national missile defense to the Navy Theater-Wide (NTW) system.
  Reports on a classified study drafted by the BMDO indicate that the Administration now recognizes that the NTW system can be adapted to defend U.S. territory against missile attack.¹³ The Missile Defense Study Team brought together by The Heritage Foundation has proposed adapting the NTW system to the national missile defense mission since 1995.¹⁴ The wisdom of this approach was reaffirmed in a more recent study by the Heritage Commission on Missile Defense.¹⁵

One of the critical needs that must be met for this approach to work, however, is adequate funding for NTW. The Administration has requested $330 million for development of the Navy Theater-Wide system in FY 2000. The 1999 Heritage Commission on Missile Defense study recommended providing $400 million to this program in FY 2000.¹⁶ At the same time, the Administration is proposing that almost $837 million be committed to national missile defense development in FY 2000.

Given that the Administration now recognizes a potential role for a modified Navy Theater-Wide system in national missile defense, it is appropriate that $70 million of the funds allocated for missile defense development be earmarked for the Navy Theater-Wide program. This earmark should be accompanied by a direction instructing the Administration to put these funds into technologies that will make a national missile defense system capable of countering strategic ballistic missiles. Such technologies include those for increasing the speed of the NTW interceptor missile and refining the lightweight advanced exoatmospheric projectile (LEAP) kill vehicle. (The "kill vehicle" is the critical component of the system that actually rams into an attacking missile and destroys it.)

Finally, the Navy Theater-Wide system must have access to and be able to use targeting information from external sensors, including shipboard radar aboard Navy vessels, in addition to the one on the ship that is used to launch the interceptor, as well as airborne sensors, ground-based radar, and sensor satellites.

• Halt funding for the enforcement of the ABM Treaty.
  The restrictions of the ABM Treaty prevent the United States from deploying a missile defense system that is capable of protecting all U.S. territory against missile attack. They also bar the testing, development, and deployment of sea-based and space-based strategic missile defense systems.

Because no foreign states are currently recognized as State Parties to the ABM Treaty, the treaty lacks legal standing. There can be no ABM treaty relationship if no states other than the United States are recognized as parties. This fact, however, has not prevented the Administration either from asserting that the treaty remains in force or from effectively enforcing ABM Treaty restrictions on a unilateral basis.

To halt the Administration's policy of unilateral observance and enforcement of ABM Treaty restrictions, Congress should bar the expenditure of any funds for the purpose of continuing the enforcement of the ABM Treaty. Currently, the Administration executes its unilateral observance of the ABM Treaty through the expenditure of funds for this purpose. An office called the Compliance Review Group handles the bulk of these enforcement activities. For example, the BMDO must obtain the approval of the Compliance Review Group before it conducts a test of a missile defense system. If the Compliance Review Group finds that a certain test is not consistent with the Administration's policy of observing ABM Treaty restrictions, the test may not be conducted. These kinds of enforcement activities should be denied funds.

The same kind of restrictions should apply to any attempt by the Administration to implement a new treaty with Belarus, Kazakhstan, Russia, and Ukraine before ratification of that new agreement. This agreement, signed by a U.S. representative in New York in September 1997,¹⁷ would impose many of the same restrictions found in the ABM Treaty. But before it is implemented, it will require the advice and consent of the Senate prior to ratification. The Administration has yet to send the treaty to the Senate for its consideration.

Representative David McIntosh (R-IN) has circulated a "Dear Colleague" letter inviting House members to co-sponsor a bill that would prohibit funding for the Administration's ABM Treaty enforcement activities and for the enforcement of the provisions of the new multilateral agreement.¹⁸ The funding prohibition that would be established by this measure is comprehensive and strict. Under its terms, no enforcement activities could take place regarding either treaty. Thus, this legislation attempts to clear away the artificial legal impediments to the development and deployment of an effective and affordable missile defense system for the United States.

CONCLUSION

The speedy development and deployment of an effective missile defense system is among the highest U.S. national security priorities. The evidence marshaled in the Cox Committee and Rumsfeld Commission reports confirms that the threat of ballistic missile attack on U.S. territory is both present and growing. Now, with Congress's adoption of legislation establishing deployment of a missile defense system as U.S. national policy, the political momentum for accomplishing this vital objective is at hand.

The American people cannot afford to see this momentum lost. Either Congress will maintain the existing momentum and an effective missile defense will be deployed prior to an attack, or such a system will be deployed only after an attack is launched against U.S. territory. Taking concrete steps toward deployment means that Members of Congress must put forth proposals that accelerate critical missile defense programs and reverse the Administration's policy of observing the restrictions of the defunct 1972 Anti-Ballistic Missile Treaty.

One thing is certain: The threat of missile attack will not wait for Washington to act.

Baker Spring is Senior Defense Policy Analyst in the Kathryn and Shelby Cullom Davis International Studies Center at The Heritage Foundation.