ORDER OF PROCEDURE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89T00234R000100030025-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 23, 2016
• Document Release Date: January 23, 2013
• Sequence Number: 25
• Publication Date: March 11, 1987
• Content Type: MISC

Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
N.C1.10 4.31ka I Li
S 2967
compel the testimony of Nort d ues to be a significant preoccupatiolkhen we cannot get Senators to come
Poindexter. with the Iran-Contra matter and there to the floor.
are disclosures almost on a daily basis
with renewed allegations that the
President may have known about the
diversion of funds to the Contras.
These issues are of paramount im-
portance to the operation of our Gov-
ernment, and these issues should take
precedence with the Senate select
committee.
It is really a matter of the tail wag-
ging the dog, with the independent
counsel insisting that he be given a
protracted period of time to complete
his investigation. Not only is the tail
wagging the dog, but the tail is wag-
ging the country.
That is why I am submitting this
sense-of-the-Senate resolution, Mr.
President, because I think the nation-
al public interest requires that all of
the facts be disclosed on the Iran-
Contra matter at the earliest possible
time, especially since the criminal
prosecutions against North, Poin-
dexter, and others can be maintained
at the same time.
Mr. President, I ask unanimous con-
sent that the text of the resolution be
printed in the RECORD.
There being no objection, the resolu-
tion was ordered to be printed in the
RECORD, as follows:
S. RES. 165
Whereas, the Nation's interests demand
full disclosure at the earliest possible time
regarding the sale of arms to Iran and the
diversion of funds to the Contras; and
Whereas, the courts have established that
the Congressional interest in eliciting testi-
mony must, in the event of conflict, take
precedence over the interests of prosecu-
tors; and
Whereas, prosecutions of key witnesses
can, in any event, be preserved by sealing all
relevant evidence prior to a grant of limited
use immunity; and
Whereas, the testimony of Admiral John
Poindexter and U. Col. Oliver North is in-
dispensible to a full explanation of the
Iran/Contra matters; Therefore be it
Resolved, That it is the Sense of the
Senate that the Senate Select Committee
investigating these matters should promptly
grant limited "use" immunity to Admiral
Poindexter and Lt. Col. North, so that their
sworn testimony can be compelled.
My experience as a district attorney
in Philadelphia for some 8 years has
given me background on the operation
of limited-use immunity, and succinct-
ly stated, Mr. President, the only limi-
tations on prosecution from such lim-
ited-use immunity is that the testimo-
ny of North and Poindexter, or leads
from that testimony, may not be used
in a criminal prosecution against
them. But evidence which is gathered
independently may be used in such a
criminal prosecution.
During the Watergate investigation
evidence was compiled and sealed prior
to the time that limited-use immunity
was granted to witnesses in those pro-
ceedings, and then there was no ques-
tion of taint as to the evidence which
was in existence and sealed with the
court prior to the time that those wit-
nesses testified.
That same procedure can be fol-
lowed as to North and Poindexter. If
in fact there are criminal prosecutions,
that evidence could be drawn together
in a relatively brief period of time
which the independent counsel would
have under the operation of the stat-
ute. Under the statute the independ-
ent counsel is entitled to 10 days'
notice, and the court has the discre-
tion to limit the pursuit of the immu-
nity for an additional period of 20
days. The independent counsel has
had a protracted period of time to con-
duct and investigate, and there are
facts of record.
This matter was considered, Mr.
President, by the Intelligence Commit-
tee during the month of December.
There were some of us on the Intelli-
gence Committee who felt that time
that it was in the public interest to
proceed as promptly as possible with
the full exploration of all of the facts
on the Iran-Contra matter because of
the importance of finding the facts,
getting to the bottom of it, letting the
chips fall where they may, assess
blame, assess criminality, and move on
to the important business of the Gov-
ernment.
These competing interests, Mr.
President, between special prosecutor
and the Senate investigating commit-
tee were thoroughly considered during
the Watergate era, and in that time,
Special Prosecutor Archibald Cox ob-
jected to the grant of immunity by the
Ervin committee, headed by Senator
Ervin. The courts ruled that the
public policy interests of the congres-
sional investigating body, the Senate
select committee, took precedence over
the interests of the prosecution.
For a time, Mr. President, the entire
Government of the United States vir-
tually was run out of the Intelligence
Committee hearing room when we had
a procession of witnesses including
then Chief of Staff Don Regan, Secre-
tary of State George Shultz, Secretary
of Defense Caspar Weinberger, Attor-
ney General Edwin Meese, and many
other Federal officials. There contin-
ORDER OF PROChllIIRE
Mr. BYRD. Mr. President, under the
order of yesterday, when the orders
for the recognition of Senators, each
for not more than 5 minutes, were
completed today, Senators were to be
permitted to speak out of order for not
to exceed 30 minutes.
Senators who were to be recognized
under the 5-minute orders are not on
the floor. I would express hope that
always in the future when Senators
have 5-minute orders, they be on the
floor ready to claim their recognition
as has been programmed. Otherwise,
the Senate does have to move on with
the rest of the program because I do
not care for these exceedingly long
quorum calls which sometimes occur
I therefore ask that that part of the
order which was for the recognition of
Senators to speak out of order for not
to exceed 30 minutes each proceed at
this time since no Senator with a 5-
minute order is on the floor at this
time seeking recognition.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
Mr. BYRD. I ask unanimous consent
that that period for speaking out
of order not extend beyond 2 p.m.
today.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
Mr. BYRD. I thank the Chair.
Mr. NUNN addressed the Chair.
The ACTING PRESIDENT pro tern-
pore. The Senator from Georgia.
INTERPRETATION OF 'L Ha ABM
TREATY
PART ONE THE SENATE RATIFICATION
PROCEEDINGS
Mr. NUNN. Mr. President, let me
first thank the majority leader for
making some time available to me
today. I have a rather lengthy presen-
tation that will bore some people to
tears but which is very important from
the point of view of the Senate as an
institution and from the point of view
of our interpretation of the ABM
Treaty.
Unfortunately, I also have a case of
laryngitis so my presentation may not
be as clear as would otherwise be the
case. I apologize to ray colleagues for
that.
Mr. President, today we have ongo-
ing a hearing under the auspices of
the Foreign Relations Committee and
the Judiciary Committee. I will be tes-
tifying on this same subject around 2
o'clock this afternoon at that hearing.
I believe Senator BIDER will be chair-
ing the hearing. It started this morn-
ing.
I think it is appropriate that those
two committees be linked in having a
joint hearing today because they are
considering a very important treaty,
and treaties are not only of central im-
portance in our foreign policy, and,
therefore, of interest to the Foreign
Relations Committee, but they are
also the law of the land and should be
of interest to all of us, especially the
Judiciary Committee.
Furthermore, the Reagan adminis-
tration's unilateral interpretation of
the ABM Treaty constitutes a funda-
mental constitutional challenge to the
Senate as a whole with respect to its
powers and prerogatives in this area.
The seriousness of this challenge has
been further underscored in recent
weeks by the administration's new
claim that testimony during Senate
treaty ratification proceedings "has
absolutely no standing" in terms of es-
tablishing other parties' obligations
Declassified and Approved For Release 2013/01/23 : CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
March 11, 1987 IIPONGRESSIONAL RECORD ? SErlif E
be no basis .for abandoning the tradi-
tional interpretation as clearly under-
stood by the Senate at the time it gave
its advice and consent on the basis of
this understanding. Absent compelling
evidence that the Senate was misin-
formed as to the agreement between
the United States and the Soviet
Union, the compact reached between
the Senate and the executive branch
at the time of ratification in my view,
should be upheld.
The third possibility, and perhaps
the most disturbing possibility: If the
negotiating record and evidence of the
subsequent practices of the United
States and Soviet Union establish a
conclusive basis for the reinterpreta-
tion?in other words, if Judge Sofaer is
right on the negotiating record?this
would mean that the Nixon adminis-
tration signed one contract with the
Soviets and the Senate ratified a dif-
ferent contract. Such a conclusion
would have profoundly disturbing con-
stitutional implications?to say the
least. In effect, the President would
have to choose between the executive
branch's obligations to the Senate and
its contract with the Soviet Union. If
the President did not choose to honor
the commitments to the Senate, the
Senate will then be faced with devel-
oping an appropriate response or risk
having its role in the treaty-making
process become meaningless.
In two reports which I intend to
present to the Senate within a few
days, I will address the subsequent
practice of the two parties and the
treaty negotiating record with a view
toward determining which of the
three situations now confront the
Senate.
Mr. President, I ask that my com-
plete record of this analysis be printed
in the RECORD following this state-
ment.
There being no objection, the report
was ordered to be printed in the
RECORD, as follows:
INTERPRETATION OF THE ABM TREATY
PART ONE: THE SENATE RATIFICATION
PROCEEDINGS
(By Senator Sam Nunn, March 11, 1987)
PREAMBLE
For the past year and a half, the United
States has been embroiled in a contentious
and arcane internal dispute over the correct
interpretation of those portions of the 1972
ABM Treaty which pertain to the develop-
ment and testing of futuristic or so-called
"exotic" ABM systems. This controversy
was precipitated in October, 1985, when the
Reagan Administration announced with no
advance notice or congressional consulta-
tions that the interpretation of the Treaty
which successive U.S. administrations had
upheld since 1972 was incorrect.
The debate on the reinterpretation issue
has necessarily been legalistic. Treaties are,
after all, the law of the land, and the Presi-
dent is charged with executing the law.
Moreover, the Senate has a crucial _constitu-
tional role in treaty-making and thus has a
direct interest in -ensuring that treaties are
accurately presented and faithfully upheld.
11 the President can unilaterally change
treaty obligations which were clearly under-
stood and accepted by the Senate at the
time it consented to ratification, it dramati-
cally alters the Senate's constitutional role
as a co-equal partner in this area.
For these reasons, it is imperative that the
Administration's case for the reinterpreta-
tion be subjected to a rigorous legal analy-
sis. Some have accused those who do not
accept the Administration's case for the re-
interpretation of allowing "legalisms" to
stand in the way of necessary progress in
the Strategic Defense Initiative. Others
have accused the Administration?in one
columnist's phrase?of "lookin' fer loop-
holes" in the Treaty through what might be
called "sharp practices."
I believe that it is important to put aside
accusations as to motive and judge the facts
as they stand. If the reinterpretation is le-
gally correct, then our Nation has every
right to proceed accordingly. But if it is not
legally correct, then manipulating the law
of the land is not acceptable.
Before beginning this legal analysis, there
are, however, a few points I want to make
about the broader policy context within
which this issue must be debated.
First, I do not believe that the reinterpre-
tation debate should be cast in terms of
whether one is for or against the ABM
Treaty. The Treaty was accepted in 1972 by
the Nixon Administration and the United
States Senate on the assumption first, that
the Soviet Union would strictly observe its
terms, and second, that significant reduc-
tions in strategic offensive arms would be
accomplished within five years.
Neither expectation has been fulfilled.
The Soviets have not restrained the relent-
less expansion of their strategic offensive
forces. Their massive investment in strate-
gic defenses (primarily air defenses)?while
not a violation of the ABM Treaty?does
contradict the spirit of the agreement; that
is, that both sides recognized and accepted
that there can be no shield against retalia-
tion. And violations such as the Kras-
noyarsk radar undermine the integrity of
the agreement.
In light of these considerations, the Soviet
Union must recognize that the U.S. commit-
ment to the ABM Treaty cannot be deemed
unalterable or open-ended?whether or not
the traditional interpretation of the Treaty
Is upheld. If arms control or unilateral stra-
tegic modernization efforts (such as moving
to mobile ICBMs) fail to restore stability to
the strategic balance in the future, the
United States may well have to deploy stra-
tegic defenses designed to protect its retalia-
tory forces and command, control and com-
munications. Unless the ABM Treaty could
be amended by mutual agreement to permit
such deployments, this action would neces-
sarily require the United States to exercise
Its right under the supreme national inter-
est clause of the Treaty to withdraw on six
months notice.
Certainly a U.S. decision to withdraw
from the ABM Treaty would be enormously
controversial at home and abroad. I am not
counseling this course at this time. None-
theless, the American public and our allies
need to understand that if we cannot solve
current. strategic vulnerabilities through
arms control or our own strategic programs,
we may have no recourse but to consider de-
ploying some form of strategic defense.
Second, those who support the reinterpre-
tation in the name of accelerating the SDI
may be laboring under a fundamental mis-
impression. There is a strong case that the
specific SDI early deployment system now
favored by Secretary Weinberger cannot be
developed or tested under either interpreta-
tion.
Finally, those who would cast this issue as
a question of whether one is for or against
Soviet violations of arms control agreements
S 2973
miss the point: there are other, more honor-
able responses available to the United
States. These include, first, insisting that
the Soviets correct the violations; second,
Proportional US. responses; and third and
last, abrogation of the agreement.
For 200 years, the United States has stood
for the rule of law as embodied in our Con-
stitution. The reinterpretation issue must
be approached not with an eye toward near-
term gains, but rather with a decent respect
for the long-term interests of the rule of law
and the continued integrity of this Consti-
tution?that magnificient document whose
200th birthday we celebrate this year.
SECTION x: INTRODUCTION
A. Background
In 1972, the United States and the Soviet
Union entered into a Treaty on the Limita-
tion of Anti-Ballistic Missile Systems.,
During the Senate ratification proceedings,
Secretary of State Rogers set forth the
Nixon Administration's summary perspec-
tive on the Treaty:2
"Under this treaty, both sides make a
commitment not to build a nationwide ABM
defense. This is a general undertaking of
utmost significance. Without a nationwide
ABM defense, there can be no shield against
retaliation. Both great nuclear powers have
recognized, and in effect have agreed, to
maintain mutual deterrence."
In broad outline, the Treaty prohibited
deployment of all ABM systems except at
two designated sites in each nation. At these
sites, the ABM systems were limited to
fixed, land-based components based on
"then-current" technologies (i.e., ABM mis-
siles, launchers, and radars). Research on
these types of ABM components was not
limited by the Treaty, but development and
testing was confined to agreed test ranges.
The Treaty contained a further prohibi-
tion against development, testing, or deploy-
ment of sea-based, air-based, space-based, or
mobile land-based ABM systems or compo-
nents. In this report, these types of systems
will be referred to collectively as "mobile/
space-based" ABM systems. As with fixed,
land-based ABM components, research was
permitted on mobile/space-based ABM
system. The distinction between fixed, land-
based ABMs and mobile/space-based ABMs
Is a key aspect of the current Treaty rein-
terpretation controversy.
The Treaty has considerable current rel-
evance because of its direct relationship to
the Strategic Defense Initiative (SDI), inti-
tiated by President Reagan in 1983. A key
element of SDI research involves the poten-
tial for a space-based ABM defense using fu-
turistic technology, such as lasers or parti-
cle beams. Under current parlance, ABM
components using "other physical princi-
ples" (i.e., physical principles or technol-
ogies "other" than those incorporated into
ABMs in 1972) are known as "exotics" (and
sometimes referred to as "future systems").
Another key issue in the current reinterpre-
tation controversy involves the impact of
the Treaty on development and testing of
exotics.
The Reagan Administration initiated the
SDI program under what is known as the
"traditional" or "restrictive" interpretation
of the ABM Treaty (hereinafter referred to
as "the Traditional Interpretation"). Under
the Traditional Interpretation, the Treaty
has the following effect with respect to
ABMs using "exotics" such as lasers:
TRADITIONAL INTERPRETATION OF THE TREATY
Research on all ABMs, including those
urging exotic technologies, is permitted.
Testing and development of fixed, land-
based exotics is permitted.
neclassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Declassified and Approved For
S zu
Testing and development of mobile/space-
based exotics is prohibited.
Deployment of all exotics (whether fixed,
land-based or mobile/space-based) is prohib-
ited unless the parties agree to amend the
Treaty.
The Reagan Administration developed an
elaborate plan for a "treaty-compliant" SDI
research program. This involved conducting
SDI experiments and technology demon-
strations in a manner which would not
transgress the prohibitions under the Tradi-
tional Interpretation against the develop-
ment of full-scale mobile/space-based ABM
components or the testing of those compo-
nents in an ABM mode.
B. Announcement of the reinterpretation
On October 6, 1985, Robert McFarlane,
then the President's National Security Ad-
viser, revealed that the Reagan administra-
tion was preparing to adopt a new interpre-
tation of the Treaty, with dramatic implica-
tions for the conduct SDI. Appearing on
Meet The Press, McFarlane announced that
". . . research involving new physical con-
cepts. . . as well as testing, as well as devel-
opment indeed, are approved and author-
ized by the treaty. Only deployment is fore-
closed . . . ."
McFarlane's announcement of a new read-
ing of the Treaty appeared to open the door
to unrestricted development and testing of
the actual components of a space-based SDI
system utilizing exotic components. It was
based on a preliminary legal opinion which
had been written the preceding week by
Abraham Sofaer, the State Department
Legal Adviser.
The main lines of the reinterpretation ar-
gument (hereinafter referred to as "the Re-
interpretation" or "the Sofaer analysis")
may be summarized as follows: 3
REINTERPRETATION OF THE TREATY
The text of the Treaty is ambiguous. It
prohibits deployment of mobile/space-based
ABMs using exotics. Although it is possible
to read the Treaty as also banning testing
and development of ABMs using exotics,
Sofaer maintains that the Treaty "can more
reasonably be read to support a broader in-
terpretation"?i.e., that the Treaty permits
such development and testing.'
The record of the Senate ratification
debate and other statements at or near the
time of ratification support an interpreta-
tion of the Treaty that would permit testing
and development of mobile/space based
ABMs using exotics. Sofaer contends that
this record "can fairly be read to support
the so-called broader interpretation." 5
The classified negotiating record supports
the Reinterpretation. Sofaer contends that
the negotiating record demonstrates that
"although the United States delegates ini-
tially sought to ban development and test-
ing of non-land-based systems or compo-
nents based on future technology, the Sovi-
ets refused to go along, and no such agree-
ment was reached." 6
McFarlane's announcement, based on the
Sofaer analysis, provoked a sharply critical
response by Members of Congress, former
ABM negotiators, allied leaders, and the
Soviet government. Widespread suspicion
was voiced from these quarters that the Re-
interpretation had been fabricated to ad-
vance SDI to the threshold of deployment
without amending or abrogating the ABM
Treaty.
Although the White House noted the
President's agreement with McFarlane's
statement, the President decided on October
11. 1985 that the SDI program would con-
tinue for the indefinite future to be con-
formed to the Traditional Interpretation.
This decision was formally announced by
Secretary Shultz at a meeting of NATO par-
Release 2013/01/23: CIA-RDP89T00234R000100030025-7
14.
r
our Committee has jurisdiction over pro-
grams
KECOltll - SENA Ma
liamentarians in San Francisco on October tional role in treaty-making. IthFu.t, e rrn 1987 0r
Furthermore,
grams of the Department of Defense which
are regulated under the Treaty, including
SDI.
Over the last several months, I have de-
voted many hours to study of the Treaty,
the ratification debate, and the negotiating
record. I have been assisted in this review by
Robert Bell, an arms control specialist on
the staff of the Armed Services Committee.
Mr. Bell has spent countless hours over the
last several months researching these issues.
In addition, I have been assisted in my legal
analysis by Andrew Effron and Jeffrey
Smith, who are both lawyers on the staff of
the Armed Services Committee.
In recent weeks, the treaty reinterpreta-
tion issue has taken on a new sense of ur-
gency. In the course of a February 3 Nation-
al Security Council (NSC) meeting, Secre-
tary Weinberger urged President Reagan to
make immediate decisions on an early de-
ployment of SDI, including authorizing the
Defense Department to restructure SDI in
accordance with the Reinterpretation.
D. Commitment to consultations
C. Conflicting Administration Views
From the outset, Administration officials
provided conflicting views as to the likely
duration of the policy of adhering to the
Traditional Interpretation. In his October
14 statement. Secretary Shultz declared
that switching to the broader interpretation
was "a moot point." since the President had
reaffirmed that the SDI program "will con-
tinue to be conducted in accordance with a
restrictive interpretation of the Treaty's ob-
ligations." Nonetheless, the Secretary's
statement also noted that this policy re-
flected the Administration's assumption
that SDI would be "consistently funded at
the levels required"?thereby suggesting
that were Congress to cut SDI funding sig-
nificantly, the policy might be reconsidered.
However, on October 17, White House
spokesman Edward Djerejian declared that
congressional funding for SDI "is not a con-
dition for U.S. treaty interpretation."
On October 21. Sofaer told the House For-
eign Affairs Committee that the reinterpre-
tation issue "may have practical significance
only when the SDI program has reached
the point at which questions regarding the
feasibility of strategic defense have been an-
swered and engineering development, with a
view to deloyment, becomes a real option."'
Sofaer apparently did not believe that this
point would be reached at any time during
the current administration. In response to a
written question submitted by Senator
Warner at a November 21 Armed Services
Committee hearing, Sofaer commented on
the possibility of legislation that would
enact the Traditional Interpretation:'
". . .such legislation is unnecessary. The
President has affirmed that he intends to
pursue the SDI research program as cur-
rently structured, which is consistent with
the 'restrictive' interpretation. Should a fur-
tura Administration seek to implement the
broader interpretation, the Congress would
have a voice in that decision." (Emphasis
added.)
Other Administration officials, however,
continued to publicly advocate an early
switch to the more permissive position. For
example, at a December 5, 1985 Armed Serv-
ices Committee hearing, Richard Perle said,
"If you restrict the program to the re-
strictive interpretation, it would so preju-
dice the prospect for success that it would
become questionable, in my view, whether
we should continue with the program at
all." 9 However, at the same hearing, the Di-
rector of the SDI, Lt. Gen. Abramson, testi-
fied that it would be "several years" before
the Traditional Interpretation would
impose any cost or time delay penalties on
the program. General Abramson explained
that by this, he meant "the early 1990 time-
frame."
10
When hearings on the interpretation of
the Treaty failed to establish a consensus in
the Congress in support of the Reinterpre-
tation, the Senate sought direct access to
the negotiating record so that an independ-
ent judgment could be made on the issue.
The State Department initially refused to
provide the record, but relented in August,
1986. Under an arrangement negotiated
with Secretary Shultz, all Senators and six
cleared staff members have had access to
the negotiating record in Room S-407 of the
Capitol, a secure facility under the direct
control of the Majority and Minority Lead-
ers.
The ABM Treaty interpretation issue is a
matter of intense concern to me, both as a
member of the Senate and as Chairman of
the Armed Services Committee. This issue
goes to the heart of the Senate's constitu-
News reports of the February 3 discussion
provoked deep concern in Congress and
allied capitals. On February 6, I wrote the
President expressing my concern that a de-
cision to terminate the Administration's
policy of observing the Traditional Interpre-
tation without thorough consultations with
Congress and our allies would provoke a
profound constitutional confrontation.
Faced with blunt warnings from allied lead-
ers and other members of Congress, the Ad-
ministration decided to postpone any immi-
nent decision on this issue and to conduct
additional research into such related issues
as to what the Senate was told during the
1972 ratification proceedings and how the
parties appeared to view the Treaty subse-
quent to its ratification.
On February 8, Secretary Shultz an-
nounced that prior to any final decisions,
the Administration would engage in a "col-
laborative process" of consultations with
Congress and our allies. At a February 24
meeting with Senate leaders, Ambassador
Nitz,e and Assistant Secretary Perle provid-
ed further assurance that the new Adminis-
tration studies (which were expected to be
finished by the end of April) would be sub-
mitted to the Senate and Senators would be
afforded an opportunity to review them and
consult with the Administration before any
final decisions were taken.
On March 9, I received a letter from
Judge Sofaer in which he acknowledged
that the analyses of the Senate ratification
debate which he had previously submitted
to the Senate did not cover the subject in
full depth. He indicated that the new stud-
ies directed by the President would be thor-
ough and comprehensive. I appreciate Judge
Sofaer's candor and look forward to review-
ing these studies when they are submitted
to the Senate.
As a result of these developments, the
Senate has both an opportunity and an obli-
gation to make its views known on this issue
In the course of the next several months.
This report is intended to contribute to this
process by examining the merits of the Re-
interpretation. Sofaer's case for the Rein-
terpretation has been offered publicly in
various places, including hearings before
the Senate Armed Services Committee in
1985 and in the June, 1986 issue of the Har-
vard Law Review.i,
The classified materials provided the
Senate last August by the Department of
State also include Sofaer's detailed analysis
of the negotiating record, as well as brief re-
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
marcn IA, 2,YOI ?L7KtSSI LEN AL KECOM.) ? btipi
views of the Senate ratification proceedings
and subsequent practice.
? E. Definitions
To recap, the following definitions will be
used for purposes of simplicity in this
report:
1. Fixed, land-based: ABM systems or com-
ponents which are immobile and are de-
signed for a ground-based mode.
2. Mobile/space-based: ABM systems or
components which are sea-based, air-based,
space-based, or mobile land-based.
3. Exotics: ABM systems or components
which are: (a) based on "other physcial
principles" (i.e., physical principles other
than those which were incorporated in
ABMs at the time the Treaty was signed in
1972); and (b) capable of substituting for
1972-era ABM systems or components. (i.e.,
ABM missiles, launchers and radars).
4. Then-current ABM systems or compo-
nents: ABM systems or components utilizing
physical principles which were well known
in 1972?i.e., ABM missiles, launchers, and
radars.
5. The Traditional Interpretation: In its
shortest form, the view that the develop-
ment and testing of mobile/space-based ex-
otics is prohibited under the Treaty.
6. The Reinterpretation: The view formu-
lated by the current State Department
Legal Adviser. Abraham Sofaer, which, in
its shortest form, holds that the develop-
ment and testing of mobile/space-based ex-
otics is permitted under the Treaty.
F. Overview of report
Section II of this report summarizes the
respective interpretations of the Treaty of-
fered by the Traditional Interpretation and
the Reinterpretation. Sections III and IV
then examine the 1972 Senate hearings and
debate on ratification of the ABM Treaty
and the implications for current executive
branch conduct of the Senate's understand-
ing when it gave its advice and consent in
1972.
Within the next few days, I intend to re-
lease two additional reports which will ad-
dress other important aspects of the reinter-
pretation issue. The first of these two re-
ports will focus on the practice of the two
parties after 1972 to determine whether this
information sheds any useful light on their
respective views of the meaning of the
Treaty. The third and final report will state
my conclusions with regard to the Treaty
negotiating record. In the final report, I
shall also revisit the Treaty text to read the
document with the insight gained from the
review of the Senate ratification debate, the
parties' subsequent practice, and the negoti-
ating record.
SECTION II: Two DIFFERENT INTERPRETATIONS
OF THE ABM TREATY
The Traditional Interpretation of the
ABM Treaty is relatively straightforward:
the Treaty expressly prohibits development
and testing of mobile/space-based ABMs,
and there is no exception for ABMs using
exotics. The Reinterpretation is more com-
plex, based upon the interrelationship of
various articles in the text. This section
summarizes the two theories.
A. The text of the treaty
The provisions of the 1972 ABM Treaty
that bear on the question of exotic ABM
systems and components include Articles
II(1), III, IV, V(1), and Agreed Statement
"D". The full text of the Treaty is set forth
in Appendix 1.
ARTICLE 11(L)
For purposes of this Treaty an ABM
system is a system to counter strategic bal-
listic missiles or their elements in flight tra-
jectory, currently consisting of:
(a) ABM interceptor missiles, which are
Interceptor missiles constructed and de-
ployed for an ABM role, or of a type tested
In an ABM mode;
(b) ABM launchers, which are launchers
constructed and deployed for launching
ABM interceptor missiles; and
(c) ABM radars, which are radars con-
structed and deployed for an ABM role, or
of a type tested in an ABM mode.
TRADITIONAL INTERPRETATION: Article II de-
fines the term "ABM system" generically as
a system which has the function of counter-
ing strategic ballistic missiles. The defini-
tion then lists, as an illustration, the compo-
nents "currently" in use at the time of the
agreement. Because the clause listing the
components is only illustrative, it does not
limit the term "ABM systems" to those con-
taining such components. It also means that
the term implicitly covers future systems.
Consequently, future ABM systems that
might use different components (i.e., exo-
tics) are within the definition.
REINTERPRETATION: Article H IS ambigu-
ous, but it can be read more reasonably to
limit the definition to those components
current at the time of the agreement, there-
by excluding ABMs using components other
than interceptor missiles, launchers, or
radars (e.g., excluding exotic components).
ARTICLE III
Each Party undertakes not to deploy
ABM systems or their components
except . . . [for two designated fixed, land-
based systems with specific limitations on
missiles, launchers, and radars].
TRADITIONAL INTERPRETATION: Article III
bans deployment of all "ABM systems" or
their components except those expressly au-
thorized at two designated sites. By using
the term "ABM systems," which is broadly
defined in Article II under the traditional
view, the prohibition on deployment in Arti-
cle III extends to all present and future (i.e.,
exotic) ABM systems and components.
REINTERPRETATION: Applying a narrow def-
inition of ABM systems under Article II, the
Reinterpretation then reads the ban on de-
ployment in Article III as applying only to
the three then-current components. Under
.this view, Article III does not establish any
barrier to the deployment of exotics.
ARTICLE IV
The limitations provided for in Article III
shall not apply to ABM systems or their
components used for development or test-
ing, and located within current or addition-
ally agreed test ranges. Each Party may
have no more than a total of fifteen ABM
launchers at test ranges.
TRADITIONAL INTERPRETATION: Article IV
limits all development and testing of fixed,
land-based ABM systems or components to
agreed test ranges. Using the traditional
view's broad Article II definition of ABM
systems, Article IV applies to exotics, as well
as then-current, ABM systems, thereby re-
stricting development and testing of exotics
to the agreed test ranges. Since the Tradi-
tional Interpretation views Article V as ban-
ning the development or testing of mobile/
space-based exotics (see discussion below),
the only exotics which can be developed or
tested are fixed, land-based exotics, and
these can only be developed or tested at the
agreed test ranges.
REINTERPRETATION: Applying a narrow def-
inition of ABM systems under Article II, Ar-
ticle IV only concerns testing and develop-
ment of then-current components. As a
result, the development and testing of exo-
tics (whether fixed, land-based or mobile/
space-based) is not restricted to agreed test
ranges, and exotics may be developed or
tested anywhere.
S 2975
ARTICLE V (L)
Each Party undertakes not to develop,
test, or deploy ABM systems or components
which are sea-based, air-based, or mobile
land-based.
TRADITIONAL INTERPRETATION: Applying
the Traditional Interpretation's broad Arti-
cle II definition of ABM systems, Article V
bans the development, testing, or deploy-
ment of all mobile/space-based "ABM sys-
tems," including exotics.
REINTERPRETATION: Consistent with the
Reinterpretation's narrow reading of the
definition of ABM systems, the prohibitions
In Article V(1) apply only to ABM systems
using "then-current" components. As a
result, Article V does not prohibit the devel-
opment, testing, or deployment of mobile/
space-based exotics.
AGREED STATEMENT ?D"
In order to insure fulfillment of the obli-
gation not to deploy ABM systems and their
components except as provided in Article HI
of the Treaty, the Parties agree that in the
event ABM systems based on other physical
principles and including components capa-
ble of substituting for ABM interceptor mis-
siles, ABM launchers, or ABM radars are
created in the future, specific limitations on
such systems and their components would
be subject to discussion in accordance with
Article XIII [the Standing Consultation
Commission] and agreement in accordance
with Article XIV of the Treaty [governing
amendments].
TRADITIONAL INTERPRETATION: Agreed
Statement D complements Article III
(which bans deployment of all ABM sys-
tems, including exotics, except for fixed,
land-based systems expressly permitted at
the two specified deployment sites) and Ar-
ticle IV (which permits testing and develop-
ment of fixed, land-based exotics at agreed
test ranges. Agreed Statement D provides
that if such testing and development leads
either side to propose deployment of such
exotics, the parties should negotiate the
limitations which would govern such deploy-
ments. If, however, there is no agreement
on appropriate amendments to the Treaty,
the deployment of exotics remains prohibit-
ed.
REINTERPRETATION: Agreed Statement D is
ambiguous. The Traditional Interpretation
results in a reading of this provision that
duplicates other parts of the Treaty (i.e.,
the ban on deployment of exotics in Article
III and the procedure for discussing and
agreeing upon amendments in Article XIII
and XIV). To address the ambiguity and
give independent meaning to this provision,
it should be interpreted in light of the fact
that it is the only part of the treaty that ex-
pressly mentions exotics. Therefore, Agreed
Statement D should be read as banning de-
ployment of all exotics (including fixed,
land-based and mobile/space-based) unless
the parties agree to amendments permitting
such deployment. Moreover, because it only
addresses deployment, it should be read as
permitting testing and development of all
exotics, including mobile/space-based as
well as fixed, land-based.
B. Principles of treaty interpretation
International law has developed a series of
principles for treaty interpretation, the best
expression of which is the Vienna Conven-
tion on the Law of Treaties." The U.S. has
signed the Convention, but has not yet rati-
fied it. The relevant articles are quoted
below:
ARTICLE 31
General Rule of Interpretation
1. A treaty shall be interpreted in good
faith in accordance with the ordinary mean-
inollumm Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
S 2968 CRIGRESSIONAL RECORD ? SENA', March 11, 1987
under these treaties. In effect. the
Reagan administration is telling the
Senate not only that the executive
branch is free to ignore the meaning
of the treaty as originally described in
the Senate of the United States, but
also that other nations who are party
to such treaties can disregard what
the executive branch told the Senate
at the time of ratification.
I am certain that this novel doctrine
will receive close scrutiny during the
hearings before the Foreign Relations
Committee and the Judiciary Commit-
tee.
Mr. President, before I present the
results of my review of 1972 Senate
ABM Treaty ratification proceedings,
I believe that a few comments are in
order about the overall context in
which the Senate must consider the
ABM reinterpretation issue.
First, I do not believe that the rein-
terpretation debate should be cast in
terms of whether one is for or against
the ABM Treaty. The treaty was ac-
cepted in 1972 by the Nixon adminis-
tration and the United States Senate
on the assumption, first, that the
Soviet Union would strictly observe its
terms, and second, that significant re-
ductions in strategic offensive arms
would be accomplished within 5 years.
Neither expectation has been ful-
filled. The Soviets have not restrained
the relentless expansion of their stra-
tegic offensive forces. Their massive
investment in strategic defenses, pri-
marily air defenses?while not a viola-
tion of the ABM Treaty?does contra-
dict the spirit of the agreement; that
Is, that both sides recognized and ac-
cepted in 1972 that there can be no
shield against retaliation. And viola-
tions such as the strategic Kras-
noyarsk radar undermine the integrity
of the agreement.
In light of these circumstances and
considerations, the Soviet Union must
recognize that the United States com-
mitment to the ABM Treaty cannot be
deemed unalterable or open-ended?
whether or not the traditional inter-
pretation of the treaty is upheld. If
arms control or unilateral strategic
modernization efforts?such as moving
to mobile ICBM's?fail to restore sta-
bility to the strategic balance in the
future, the United States may well
have to deploy strategic defenses de-
signed to protect its retaliatory forces
and command, control and communi-
cations. Unless the ABM Treaty could
be amended by mutual agreement to
permit such deployments, which
would require approval of both par-
ties, this action would necessarily re-
quire the United States to exercise its
right under the supreme national in-
terest clause of the treaty to withdraw
on 6 months notice.
Certainly a U.S. decision to with-
draw from the ABM Treaty would be
enormously controversial at home and
abroad. I am not counseling this
course at this time. Nonetheless, the
American public and our allies need to
understand that if we cannot solve
curent strategic vulnerabilities
through arms-control or our own stra-
tegic programs, we may have no re-
course but to consider deploying some
form of strategic defense, in the
future.
Second, those who support the rein-
terpretation of the ABM Treaty in the
name of accelerating the SDI may be
laboring under a fundamental and er-
roneous misimpression. There is a
strong case that the specific SDI early
deployment system now favored by
Secretary Weinberger cannot be devel-
oped or tested under either intepreta-
tion.
This requires a rather complicated
explanation which I will not go into at
this time, but it is not at all certain, in
fact I would say the evidence is lean-
ing against it, that even the broad in-
terpretation of the treaty would
permit the testing and development of
the so-called space-based kinetic-kill
system that is now apparently favored
for early deployment.
Finally, those who would cast this
Issue as a question of whether one is
for or against Soviet violations of arms
control agreements miss the point:
there are other, more honorable re-
sponses available to the United States.
These include, first, insisting that the
Soviets correct the violations; second,
proportional U.S. responses; and third
and last, abrogation of the agreement.
For 200 years, the United States has
stood for the rule of law as embodied
in our Constitution. The reinterpreta-
tion issue must be approached not
with an eye toward near-term gains,
but rather with a decent respect for
the long-term interests of the rule of
law and the continued integrity of this
Constitution?that magnificent docu-
ment whose 200th birthday we cele-
brate this year.
Mr. President, the record of the rati-
fication proceedings before the U.S.
Senate in 1972 supports, in my view,
the following conclusions about the
scope of the treaty.
First, executive branch witnesses
clearly stated that development and
testing of mobile space-based exotics
was banned while development and
testing of fixed land-based exotics was
permitted. Key Members of the
Senate, including Senators Henry
Jackson, Barry Goldwater, John
Sparkman, and James Buckley, were
directly involved in the dialog and
debate concerning the implications of
the treaty which the record indicates
they clearly understood to ban testing
and development of mobile space.
based exotics. I think a few examples
of this are very important. and in order
here.
The question of exotics was raised in
the first Senate hearing that consid-
ered the treaty. Senator Goldwater, in
a question for the record to Secretary
of Defense Laird, noted that he had
"long favored" moving ahead with
space-based ABM's capable of conduct-
ing boost-phase intercepts using "shot,
nuces (sic.), or lasers," and asked
-whether it was correct that nothing in
the treaty "prevents development to
proceed in that direction."
The written reply from DOD distin-
guishes between development, of fixed,
land-based ABM's?which is permitted
by the treaty?and this is extremely
Important, very complicated, but it is
the key to this overall consideration?
and development of mobile/space-
based ABM's, which is prohibited. The
reply from Secretary Laird expressly
related these provisions to lasers,
which in our terms today would be
considered an "exotic" ABM compo-
nent:
REPLY OP SECRETARY LAIRD TO QUESTION FROM
SENATOR GOLDWATER
With reference to development of a boost-
phase intercept capability or lasers, there is
no specific provision in the ABM Treaty
which prohibits development of such sys-
tems. There is, however, a prohibition on
the development, testing, or deployment of
ABM systems which are space-based, as well
as sea-based, air-based, or mobile land-
based. The U.S. side understands this prohi-
bition not to apply to basic and advanced re-
search and exploratory development of
technology which could be associated with
such systems, or their components. There
are no restrictions on the development of
lasers for fixed. land-based ABM systems.
The sides have agreed, however, that de-
ployment of such systems which would be
capable of substituting for current ABM
components, that is. ABM launchers. ABM
interceptor missiles, and ABM radars, shall
be subject to discussion in accordance with
Article XIII (Standing Consultative Com-
mission) and agreement in accordance with
Article XIV (amendments to the treaty).
This statement is particularly signif-
icant because it embodies a formal,
written -executive branch response. It
clearly sets forth the traditional inter-
pretation of the treaty with respect to
exotics, permitting development, and
testing only in a fixed, land-based
mode. The reply makes it clear that
mobile/space-based exotics are subject
to the comprehensive ban on develop-
ment, testing, and deployment, with
the understanding?as stated in Secre-
tary Laird's reply?that the treaty
only permits "basic and advanced re-
search and exploratory development."
It is also noteworthy that the reply
clearly links the ban on development
of mobile/space-13ased ABM laser sys-
tems to article V of the treaty. Article
V contains a comprehensive ban on
mobile/space-based, ABM systems.
Secretary Laird's express linkage be-
tween mobile/space-based exotics and
article V directly refutes the reinter-
pretation's analysis of the treaty's
text, which asserts that article V ap-
plies only to components existing in
1972; that is, missiles, launchers, arid
radars.
The detailed executive branch reply
was omitted from an October 30, 1985,
analysis of the ratification debate sub-
mitted to the Senate Armed Services
Committee by Sofaer on November 21,
1985. This omission was brought to
the attention of the committee on
January 6, 1986, in a letter from John
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Amu! Lit 41, .1.701 liti..EJJIVIN AL Kt,C.OKI) ? Ship k,
Rhinelander, the legal adviser to the
U.S. SALT I delegation. In a subse-
quent analysis of the ratification
debate published in the June 1986
Harvard Law Review, Sofaer conceded
in a footnote that the DOD reply to
Goldwater supports the traditional in-
terpretation.
The second example is an exchange
between Senator Henry Jackson and
DOD's Director of Research and Engi-
neering which confirmed the treaty's
ban on testing and development of
mobile/space-based exotics. During
the Senate debate on the SALT I ac-
cords, which included the ABM
Treaty, the late Senator Henry Jack-
son, a senior member of the Armed
Services Committee, conducted a rig-
orous inquiry into the agreements,
with a profound impact on the condi-
tions of Senate acceptance. From the
outset, he exhibited a keen sensitivity
to the issue of exotics by focusing on
laser ABM's. For example, just 5 days
after the treaty's signing, he made a
statement sharply citical of the
Army's reputed cancellation of a re-
search contract involving laser ABM's
? When Secretary Laird came before
the committee on June 6, 1972, he
quickly assured Senator Jackson that
no such contract had been canceled.
When Senator Jackson asked about
ABM Treaty limits in this area, Secre-
tary Laird gave a general reply?
noting only that "research and devel-
opment can continue, but certain com-
ponents and systems are not to be de-
veloped"?without getting into the dis-
tinction between fixed, land-based sys-
tems and mobile/space-based systems.
Senator Jackson pursued that dis-
tinction in June 22, 1972, hearing
during testimony by Dr. John Foster,
Director of Defense Research and En-
gineering, and Lt. Gen. Walter Leber,
the program manager of the Army's
Safeguard ABM system. This hearing
involved a careful discussion of trea-
ty's limits regarding development of
ABM's using exotics, with a specific
focus on the distinction between fixed,
land-based systems and mobile/space
based systems.
Senator Jackson began by noting
that there were limitations in the
treaty on lasers and then asked wheth-
er the agreement prohibited land-
based laser development? Dr. Foster
replied, "No sir; it does not." The text
of the printed hearing reads as fol-
lows:
? LASER ABM SYSTEM
Senator JACKSON. Article V says each
party undertakes not to develop and test or
deploy ABM systems or components which
are sea based, air based, space based or
mobile land based.
Dr. POSTER. Yes sir, I understand. We do
not have a program to develop a laser ABM
sytem.
Senator JACKSON. If it is sea based, air
based, spaced based or mobile land based. If
It is a fixed, land-based ABM system, it is
permitted; am I not correct?
Dr. FOSTER. That is right.
Senator JACKSON. What does this do to
our research?I will read it to you: section I
?
of article 5?this is the treaty: "each party
undertakes to develop"?it hits all of these
things?"not to develop, test or deploy ABM
systems." You can't do anything; you can't
develop; you can't test and finally, you can't
deploy. It is not "or".
Dr. Foam. One cannot deploy a fixed,
land-based laser ABM system which is capa-
ble of substituting for an ABM radar, ABM
launcher, or ABM interceptor missile.
Senator JACKSON. You can't even test; you
can't develop.
Dr. FOSTER. You can develop and test up
to the deployment phase of future ABM
system components which are fixed and
land based. My understanding is that you
can develop and test but you cannot deploy.
You can use lasers in connection with our
present land-based Safeguard system pro-
vided that such lasers augment, or are an
addendum to, current ABM components. Or,
In other words, you could use lasers as an
ancillary piece of equipment but not as one
of the prime components either as a radar
or as an interceptor to destroy the vehicle.
When Senator Jackson suggested
that even research on ABM lasers
might be prohibited, Dr. Foster said,
"No." Interposed between Senator
Jackson's question and Dr. Foster's
answer is the following insert for the
RECORD:
Article V prohibits the development and
testing of ABM systems or components that
are sea-based, air-based, space-based, or
mobile land-based. Constraints imposed by
the phrase "development and testing"
would be applicable only to that portion of
the "advanced development stage" following
laboratory testing, i.e., that stage which is
verifiable by national means. Therefore, a
prohibition on development?the Russian
word is "creation"?would begin only at the
stage where laboratory testing ended on
ABM components, on either a prototype or
bread-board model.
The importance of this submission
as an authoritative statement of Nixon
administration policy is underscored
by the original transcript of this hear-
ing which is currently maintained in
the Armed Services Committee ar-
chives. This transcript reveals two key
points. First, Dr. Foster pledged to
submit the insert after Senator Jack-
son had declared that "we had better
find out" exactly how the treaty ap-
plied to research and development in
this area. Second, the transcript re-
veals that Dr. Foster declared that in
order to clarify this issue, the submis-
sion would reflect a detailed review of
the negotiating record.
In other words, Dr. Foster promised
Senator Jackson before he gave his
written answer that he would go back
and review the negotiating record. And
this is the top man in the scientific
arena in the Department of Defense.
The unedited exchange reads as fol-
lows:
Dr. POSTER. I think you can engage in re-
search or development of laser land-based
ABM systems; you cannot deploy them as a
kill mechanism against ICBMs.
Senator JACKSON. Well, that is something
we had better find out about it. I would
[sic.] you would?
Dr. FOSTER. I would be glad to go through
the record, Senator Jackson, in some detail
and try to clarify this.
S 2969
As is the normal practice in editing
congressional hearings, the comments
about what was to be submitted for
the record was deleted and replaced by
the actual submission.
Several observations about the ex-
tensive exchange between Senator
Jackson and Dr. Foster deserve em-
phasis. First, this exchange in the
record includes a formal, written sub-
mission, which provided the executive
branch with an opportunity to prepare
an official coordinated statement after
review of the negotiating record. As
such, it clearly represents an authori-
tative statement of the administra-
tion's position. Second, the fact that
the statement refers to article V?the
treaty's ban on testing, development,
and deployment of mobile/space-based
ABM's?in the context of lasers again
refutes the reinterpretation's premise
that article V does not apply to ABM's
using exotics.
The Jackson-Foster exchange direct-
ly contradicts the reinterpretation of
the treaty. The credibility of the
Sofaer analysis Is further undermined
by the distorted manner in which it
treats this crucial dialog between a
leading Senator and high-level Nixon
administration witness. For example:
The version of this extensive Jack-
son/Foster exchange presented in So-
faer's October 1985 analysis of the
ratification proceedings and in So-
faer's June 1986 Harvard Law Review
article advocating the reinterpretation
is greatly abbreviated. While the rein-
terpretation acknowledges that Dr.
Foster's comments support the tradi-
tional interpretation, the only portion
of the entire exchange which it cites is
the following:
Dr. FOSTER: One cannot deploy a fixed,
land-based laser ABM system which is capa-
ble of substituting for an ABM radar. ABM
launcher, or ABM interceptor missile . . .
You can develop and test up to the develop-
ment phase of future ABM system compo-
nents which are fixed and land based.
Dr. Foster's explicit confirmation
that development and testing of space-
based, or mobile land-based laser
ABM's was prohibited is omitted in the
reinterpretation. There is also no men-
tion in the reinterpretation of Foster's
written submission nor its linking the
discussion of limits on laser ABM's to
article V.
Dr. Foster, a Presidential appointee,
was the highest ranking technical offi-
cial, and third-ranking civilian in the
Defense Department. He had served in
his position since 1965. Nonetheless,
the Sofaer analysis tries to disparage
his testimony by stating Foster was
"not involved in the drafting or negoti-
ation of the treaty." The suggestion
that the Director of Defense Research
and Engineering would not have ac-
quainted himself thoroughly with the
treaty's effect on programs under his
supervision prior to representing the
administration before the Armed Serv-
ices Committee is absurd. At any rate,
as discussed above, the transcript con-
ngostm Declassified and Approved For Release 2013/01/23 : CIA-RDP89T00234R00010003002577iminuminige
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
March 11, LW
firms that Dr.. Foster's written suiW-
sion
was based on a detailed review of
the negotiating record.
I also. find it interesting, Mr. Presi-
dent, that in making his analysis,
Judge Sofaer has riotto the best of my
knowledge interviewed those who were
responsible for negotiating this treaty
with the exception of Paul Nitze, a
very respected individual who works
for this administration. So by virtue of
his reference that Dr. Foster was not a
negotiator you would think, if this was
important, there would have at least
been interviews with those who were
negotiators. But we have had this rein-
terpretation rendered with such inter-
views not having occurred even to
date, with the exception of Paul Nitze.
Sofaer's account of the exchange ex-
cises Senator Jackson's half of this
dialog in its entirety. As a result,
anyone reading this analysis would not
know that Senator Jackson had ac-
quired a detailed understanding of the
treaty limits in this area or, indeed,
that the Senator took the lead in
drawing out of the witness explicit
confirmation of these restrictions.
As a result of this omission, the only
mention of Senator Jackson in So-
faer's October 1985 analysis of all of
the Armed Services Committee's ratifi-
cation hearings is in a discussion of a
hearing on July 19, 1972. In a summa-
ry comment on Senator Jackson's July
19 statements, the reinterpretation
concludes: "Fairly read, Senator Jack-
son's comments do not address future
systems."
Mr. President, this is perhaps the
most egregious omission and misinter-
pretation that I have come across in
the entire record.
By omitting the extensive June 22
Jackson/Foster exchange on laser
ABM's?as well as other instances
when Senator Jackson querried wit-
nesses on the question of laser ABM's,
including a highly classified session on
June 26 with CIA Director Richard
Helms?the reinterpretation is then
able to claim in a paragraph summa-
rizing all congressional hearings
during the ratification proceedings
that "Senator Jackson's comments do
not appear to address future systems."
Sofaer's assertion that Senator Jack-
son never addressed the question of
limits on laser ABM's during the
entire Senate debate on the ABM
Treaty is flatly and unequivically con-
tradicted by the record of the debate.
In the third example is a July 19 ex-
change with Senator Jackson, in
which General Palmer confirmed that
the JCS supported the limitation
under which testing and development
of exotics was restricted to fixed, land-
based systems. The record of this
Armed Services Committee hearing
not only repudiates the claim that
Senator Jackson did not address
future systems, it also contains a cru-
cial passage confirming the Joint
Chiefs' understanding of the differ-
ence between fixed, land-based and
mobile/space-based exotics in terms of
the restrictions on development and
testing.
This hearing involved an. extensive
exploration of treaty's limits on exo,
tics, focusing on laser ABM's. The key
exchange occurred between three Sen-
ators: Goldwater, Jackson, and Domin-
ick, and three executive branch wit-
nesses: General Ryan, Chief of Staff
of the Air Force, General Palmer,
Acting Chief of Staff of the Army, and
Lieutenant General Leber, project
manager of the Safeguard ABM Pro-
gram. This exchange covers seven
pages of the printed hearing. During
this exchange, the word "laser" was
used 13 times, descriptions of or refer-
ences to lasers were made 6 other
times, and the phrase "futuristic sys-
tems" was mentioned 3 times.
During the same hearing, Senator
Jackson also questioned the witness
about General Palmer's broad state-
ment that the treaty "does not limit
R&D on futuristic systems." Senator
Jackson, expressing concern about the
generality of this response, drew the
witnesses' attention to article V's pro-
hibition on development of mobile
ABM systems. General Ryan noted
the distinction between permissible de-
velopment of fixed, land-based systems
and the prohibited development of
mobile/space-based systems. Finally,
General Palmer provided an authori-
tative statement on the prohibition on
development of mobile/space-based
exotics.
How anyone cound have omitted
this in a presentation about the
Senate record escapes my own sense of
logic. I will not read it in its entirety,
but it is included in my full report
which I will put in the RECORD.
Sofaer's analysis of this discussion
omits Palmer's crucial closing com-
ment that the JCS were aware of the
limits on development and testing of
laser ABM's, had agreed to them, and
recognized that this was a fundamen-
tal part of the final agreement. Thus,
the record demonstrates that Sofaer's
assertion that Senator Jackson did not
address the question of exotics during
the ratification debate is a complete
and total misrepresentation. It also
underscores the inadequacy of its
analysis by its omission of this addi-
tional, and authoritative, confirmation
that the treaty banned the develop-
ment and testing of all but fixed, land-
based exotics.
It is also noteworthy that Senator
Jackson and the executive branch wit-
nesses clearly cited the prohibition on
testing and development of mobile/
space-based systems in article V of the
treaty as the authority for the prohi-
bition on testing and development of
missile/space based ABM using exo-
tics. This further undermines the rein-
terpretation's analysis of the treaty's
text in which it asserts that article V
should not be read as applying to
mobile/space-based exotics.
Mr. President, the reinterpretation
is based on two categories of incom-
plete, imprecise, or general state-
nts?those which indicate that
exotics cannot be deployed and those
which indicate that R&D on lasers is
permitted. However, each of these
statements can be read as consistent
with either the traditional interpreta-
tion or the reinterpretation. This is
extremely important, because it is the
heart of the case for reinterpretation
so far as the Senate record is con-
cerned.
In the reinterpretation, much is
made of brief statements to the effect
that the deployment of exotics is
banned. For example, during his May
26, 1972, press conference, Ambassador
Smith said, "future systems ? ? will
not be deployable unless this treaty is
amended." The reinterpretation reads
this statement as supportive of its
case, arguing that, "It is unlikely that
Ambassador Smith, the negotiator of
the treaty, would have referred to
only a ban on deployment if he had
meant testing and development were
banned as well."
Smith's statement that the deploy-
ment of exotics is banned is, however,
fully consistent with the traditional
interpretation. Nonetheless, the rein-
terpretation suggests that since Smith
cited the ban on deployment of exotics
but omitted any mention of a ban on
their development or testing, then he
must have believed that the treaty
gave a green light to such activities;
that is, that he would have gone on to
say, had he voiced his opinion on this
Issue, that the treaty permits the de-
velopment and deployment of all exo-
tics. This is a very important part of
the argument.
In short, the reinterpretation pre-
sumes that if Smith had believed that
the traditional interpretation had
been agreed to he would not have said
simply that "future systems ? ? * will
not be deployable unless this treaty is
amended"?he would have said that
"future systems will not be developed,
tested, or deployed unless this treaty
is amended."
There are three major problems
with the logic upon which this analy-
sis is based. First, the Smith statement
is true and accurate on its face be-
cause under either interpretation de-
ployment of future systems?that is,
exotics?is banned. Second, it attempts
to build a major case on what was not
said. Third, if Smith had said what the
reinterpretation postulates he should
have said, he would have been wrong.
Why? Because under both the tradi-
tional interpretation and the reinter-
pretation, the development and testing
of fixed, land-based exotics is permit-
ted. Development or testing of mobile/
space-based exotics is, of course,
banned under the traditional interpre-
tation.
In other words, if Ambassador Smith
had said exactly what the reinterpre-
tation theory infers he should have
said he would have been incorrect, be-
cause he would have been including
land-based and mobile-based systems
npriassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
March II, 1987 PNGRESSIONAL RECORD ? SENA S 2971
when one was treated differently from
the other.
Under the logic of the reinterpreta-
tion, to prevent his remarks from
being distorted in the future and, at
the same time, ensure accuracy, Smith
would have had been compelled to
turn his brief sentence into something
resembling the following. This is not
Ambassador Smith speaking. This is
mY interpretation of what he would
have had to say if he were going to
avoid reinterpretation of his remarks
19 minutes later and if he were going
to be entirely accurate.
Future systems (i.e., exotics?whether
fixed. land-based or mobile/space-based?
Will not be deployable unless the treaty is
gunended. Future fixed, land-based exotics
may be developed and tested, but only at
the agreed test ranges as established under
Article Pl. Future mobile/space-based exo-
tics may not be developed or tested at all in
accordance with Article V.
Mr. President, I am not certain that
either the people listening or those at
a news conference would have sat still
long enough to hear that every time
there was a discussion of banning the
deployment of exotics.
In summary, the assertion by the re-
interpretation that a speaker's belief
may be inferred from words he did not
utter is illogical. The fact that the re-
interpretation's conclusions as to the
Senate ratification debate rely so
heavily upon such statements reveals
the flimsiness of its case.
The record of the Senate proceed-
ings does not support Sofaer's asser-
tion that the record of the Senate rati-
fication proceedings on the ABM
Treaty and statements made at or
near the ratification period "can be
fairly read to support the so-called
broader interpretation." On the con-
trary, the record of these proceedings
makes a compelling case for the op-
posite conclusion: that the Senate was
presented with a treaty that prohibit-
ed testing or development of mobile/
space-based exotics; both the propo-
nents and opponents of the treaty un-
derstood the agreement to have this
effect; and there was no challenge to
this understanding in the course of
the Senate's approval of the treaty.
In summary, I have examined the re-
interpretation's analysis of the Senate
ratification proceedings and found its
conclusions with respect to this record
not to be credible. I have concluded
that the Nixon administration pre-
sented the Senate with the traditional
interpretation of the treaty's limits on
mobile/space-based exotics. I have also
concluded that the Senate clearly un-
derstood this to be the case at the
time it gave its advice and consent to
the ratification of the treaty. In my
judgment, this conclusion is compel-
ling beyond a reasonable doubt.
This finding at this juncture does
not address all issues raised by the re-
interpretation. In the two succeeding
reports, I will examine the issues of
subsequent practice and the negotiat-
ing record, and any final judgments
must incorporate those assessments.
Nonetheless, the findings that the
Senate approved the ABM Treaty on
the basis of its clear understanding,
the acceptance of the traditional inter-
pretation has serious ramifications for
executive branch conduct. I would like
to address these implications in closing
my remarks.
Mr. President, in recent weeks, the
State Department has raised a new
theory, apparently pleading its case in
the alternative; that is, the first part
of the case is "the Senate was given
the broad interpretation;" the second
part of the case is, "just In case it was
not given the broad interpretation
here is the way we view it."
The State Department has argued
that regardless of whether the ratifi-
cation proceedings support the rein-
terpretation or broad interpretation,
executive branch testimony presented
to the Senate during the treaty-
making process can be disregarded be-
cause it "has absolutely no standing"
with the Soviets. In my opinion, this
argument is incorrect in the context of
the ABM Treaty, and is squarely in
conflict with the constitutional role of
the Senate.
Recent Soviet statements indicate
that they now consider themselves
bound by the traditional interpreta-
tion. For example, in an October 19,
1985, article in Pravda, Marshall
Sergei Akhromeyev, the Chief of the
Soviet General Staff, stated: "Article
V of the Treaty absolutely unambig-
uously bans the development, testing,
and deployment of ABM systems or
components of space or mobile ground
basing, and, moreover, regardless of
whether these systems are based on
existing or 'future' technologies."
The Reagan administration has not
argued that the Soviets do not now
claim to be bound by the traditional
interpretation. Rather, the adminis-
tration's position?as stated by Judge
Sof aer?is that, "Only after the
United States announcement of its
support for the broader interpretation
In October 1985 did the Soviet Union
begin explicitly to articulate the re-
strictive interpretation."
Since the Soviets clearly agree with
the traditional interpretation, the
State Department's suggestion that
statements made by U.S. officials
during ratification proceedings have
no standing with the Soviets is a
rather curious, if not bizarre, argu-
ment. Let us look just for the purpose
of discussion at the flip side of this in-
teresting legal question. Let us assume
for the purpose of this discussion that
the Soviets were now taking the oppo-
site position.
Let us assume that they were assert-
ing now that U.S. statements during
the ratification proceedings had "no
standing" with them.
In other words, if hypothetically the
Soviets took the position the State De-
partment is taking, would the United
States have any basis in international
law for relying on the statements to
the Senate if we were insisting that
the Soviets comply with the tradition-
al view?
As a matter of international law, the
actions of the parties, including their
statements, provide an important
guide to the meaning of a treaty. As
Lord McNair notes in his classic trea-
tise, The Law of Treaties, "when there
Is a doubt as to the meaning of a pro-
vision or an expression contained in a
treaty, the relevant conduct of the
parties after conclusion of the treaty
(sometimes called the 'practical con-
struction') has a high probative value
as to the Intention of the parties at
the time of its conclusion."
Furthermore, he goes on to state,
quoting again "Ewlhen one party to a
treaty discovers that other parties to a
treaty are placing upon it an interpre-
tation which in the opinion of the
former it cannot bear, and it is not
practical to secure agreement upon
the matter, the former party should at
once notify its dissent to the other
parties and publish a reasoned expla-
nation of the interpretation which it
places upon the term in dispute." This
is similar to the proposition under U.S.
domestic law, that "if one party knows
or has reason to know that the other
party interprets language in a particu-
lar way, his failure to speak will bind
him to the other party's understand-
ing." Although not necessarily binding
as a matter of international law, the
failure to object to a publicly an-
nounced interpretation by another
party to a treaty is clearly relevant to
Interpreting the treaty and to the
treaty's meaning.
In the case of the ABM Treaty,
these principles taken on even greater
significance in view of attendance by
Soviet officials at the Senate hearings
on the agreement. It is very interest-
ing that Senators Goldwater and Jack-
son noted the presence of one such
Soviet official?who was apparently a
regular attendee?during an extensive
discussion with Nixon administration
officials during a July 19 Armed Serv-
ices Committee hearing that dealt at
length and in great detail with the
specific question of the treaty's limita-
tions in the area of laser ABM's, exact-
ly the point we are debating now. Even
If the presence of Soviet observers had
not been noted for the record?which
It was?it is obvious that the Soviets,
who understand how our treaty-
making process works, monitored the
proceedings and reviewed the public
records. Based on their clear aware-
ness of the interpretation being pre-
sented to ?the Senate, if the Soviets
chose to enter into the treaty and
have the treaty go into force without
raising an objection, the United States
would have had a very strong basis in
law for insisting on the original mean-
ing as presented to the Senate?par-
ticularly if the Soviets waited until 15
years later to undertake a different
view of the treaty.
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Declassified and Approved
For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
nrA.A..mi) ?SENIIIE March 11, 1987
Aside from the immediate issue of
the ABM Treaty, It is contrary to the
long-term interests of the United
States to assert that statements made
to the Senate have no standing with
other parties to a treaty. The interna-
tional community is well aware of the
constitutional role of the Senate in
the treatymaking process, and they
are on notice that the executive
branch explains treaties to the Senate
during the ratification proceedings. It
Is to our national advantage to ensure
that such authoritative explanations
remain available as powerful evidence
of a treaty's meaning in the event of
an interpretative dispute among na-
tions.
By asserting that the executive
branch may now disregard the views
of those who spoke for the Nixon ad-
ministration and those who debated
the issue in the Senate, the State De-
partment is arguing, in effect, that ad-
ministration witnesses need not accu-
rately reflect the executive's under-
standing of a treaty; instead, they are
free to keep that understanding a
secret and may indeed mislead the
Senate into consenting to a treaty
which has a secret interpretation dif-
ferent from the meaning presented to
the Senate. This line of argument has
profound implications for the legisla-
tive process in general and the consti-
tutional role of the Senate in particu-
lar.
Executive branch statements to the
Senate during hearings on a proposed
treaty may provide important evidence
on issues of treaty interpretation in
the international arena. They fill an
even more important role, however, in
our constitutional system, and this
should not be overlooked. Such state-
ments are an integral part of the
making of a treaty, often shaping its
content, and well-known to all parties
to the proposal.
Under article II, section 2, clause 2
of the United States Constitution, the
Presidential power to make treaties is
subject to the requirement for advice
and consent by two-thirds of the Sena-
tors present. Article VI, paragraph 2
of our Constitution provides that trea-
ties are the supreme law of the land,
which results in giving treaties the
same force and effect as legislation en-
acted after action by both Houses of
Congress.
Louis Henkin, one of the leading
constitutional authorities in this field,
and I understand he is testifying
before the Foreign Relations Commit-
tee today, has noted that "although
treaty making has often been charac-
terized as an executive function (in
that special sense in which the con-
duct of foreign relations is executive),
constitutional writers have considered
the making of treaties to be different
from .other exercises of Presidential
power, principally because of the Sen-
ate's role in the process, perhaps too
because treaties have particular legal
and political qualities and conse-
quences."
Hamilton, in The Federalist (No. 75),
clearly illustrated the intent of the
Framers that treaty making be a
shared power between Congress and
the President, based on mutual trust.
Madison also took the position that
"there are sufficient indications that
the power of treaties is regarded by
the Constitution as materially differ-
ent from mere executive power, and as
having more affinity to the legislative
than to the executive character."
The Senate has played a vital role in
numerous treaty negotiations,
through means such as the process of
confirming negotiators, statutory re-
quirements for congressional consulta-
tion during the negotiations process,
and informal discussions. Under cur-
rent practice, when a proposed treaty
Is submitted, the Senate may consent
to the treaty, withhold its consent?
either expressly or through inaction?
or approve it with conditions.
Because the Senate is an active par-
ticipant in the making of the treaty,
the hearings and debates are a vital
source of information as to what the
treaty means. The nature of the issue
and the testimony of executive branch
witnesses may lead the Senate to
attach conditions or forego conditions,
If there is an authoritative statement
as to the meaning of a provision.
The position of the State Depart-
ment, I hope would be reexamined, be-
cause this position sends a clear mes-
sage to the Senate: you cannot rely on
our representations as to the meaning
of a treaty. The adverse consequences
of this proposition extend far beyond
the issues at hand regarding the ABM
Treaty. Our treaty relationships in-
volve not only arms control matters.
but also trade and business matters af-
fecting the economic well-being of our
Nation. We cannot ask the public to
support proposed treaties if the execu-
tive takes the position that uncontra-
dicted formal representations by
senior officials are irrelevant as to the
meaning of a treaty.
Because treaties are the supreme law
of the land, the position of the State
Department, if accepted by the execu-
tive branch, would compel the Senate
to incorporate into its resolution of
consent an "amendment" or "under-
standing" for every explanation given
by an executive branch witness lest it
be disavowed as "unilateral" after rati-
fication. We would have to have so
many understandings and conditions
that the treaty would have to be nego-
tiated all over again between the par-
ties. Treaties so laden would eventual-
ly sink under their own weight. It
would be extremely difficult to
achieve bilateral agreements, and vir-
tually impossible for the United States
to participate in multilateral treaties.
In addition, the Senate would feel
compelled to request in each case a
complete record of the negotiating his-
tory in order to ensure that no secret
understandings would emerge con-
trary to assurances given to the
Senate.
In short, in an effort to save the re-
interpretation by asserting that execu-
tive branch statements to the Senate
In 1972 are essentially meaningless.
the State Department is risking a seri-
ous constitutional confrontation in-
volving the executive branch and Con-
gress that would go far beyond this
matter. It would be a mistake for the
executive branch to compound the
problem further by asserting that the
Senate has no role to play with respect
to the meaning of treaties.
As a general proposition, the views
of the executive on the interpretation
of a treaty normally receive great def-
erence as well they should, from the
Congress. Application of that principle
In terms of the meaning presented to
the Senate by the executive branch at
the time of ratification leads to an in-
terpretation that mobile/space-based
exotics may not be developed or
tested. Under the reinterpretation,
such testing and development is per-
mitted. In this situation, many in the
Senate may be inclined to apply the
classic line of cross-examination to the
executive branch: "Should we believe
what you are telling us now or should
we believe what you were telling us
back than?"
The Senate has the right to presume
that executive branch witnesses are in-
formed and truthful in their testimo-
ny, particularly when it comes to the
Senate's constitutional role as a partic-
ipant in the treaty-making process.
The State Department's assertion that
the executive, in effect, may mislead
the Senate as to the meaning of a
treaty has the unfortunate effect of
directly challenging the Senate's con-
stitutional role. This effect could carry
over and may well produce a congres-
sional backlash through its exercise of
the power of the purse and the power
to raise and support armies in a
manner that would give effect to the
original meaning of the treaty as pre-
sented to the Senate.
In conclusion, Mr. President, the
Senate was clearly informed by the ex-
ecutive branch that the ABM Treaty,
prohibits testing and development of
mobile/spaced-based ABM's using exo-
tics. This was an issue which key Sena-
tors viewed as a matter of significance,
and which was directly addressed by
the executive branch during the
treaty-making process in statements to
the Senate. These circumstances raise
a number of possibilities with respect
to the significance of other evidence as
to the meaning of the treaty. There
are three distinct possibilities here.
First, if the negotiating record and
evidence of subsequent practice by the
parties supports the traditional inter-
pretation, the issue would be beyond
question. The traditional interpreta-
tion would apply. I will be looking at
those two parts of this overall record
in the next few days.
Second, if the negotiating record and
evidence of subsequent practice is am-
biguous or inconclusive, there would
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23 CIA-RDP89T00234R000100030025-7
%.71%.E.JOIVIN E March 11, 1987
ing to be given to the terms of the trea
their context and in the light of its object
and purpose. (Emphasis added.)
2. The context for the purpose of the in-
terpretation of a treaty shall comprise, in
addition to the text, including its preamble
and annexes:
(a) any agreement relating to the treaty
which was made between all the parties in
connection with the conclusion of the
treaty;
(b) any instrument which was made by
one or more parties in connection with the
conclusion of the treaty and accepted by the
other parties as an instrument related to
the treaty.
3. There shall be taken into account, to-
gether with the context:
(a) any subsequent agreement between
the parties regarding the interpretation of
the treaty or the application of its provi-
sions:
(b) any subsequent practice in the applica-
tion of the treaty which establishes the
agreement of the parties regarding its inter-
pretation; (Emphasis added.)
(c) any relevant rules of international law
applicable in the relations between the par-
ties.
4. A special meaning shall be given to a
term if it is established that the parties so
Intended.
Article 31 codifies the customary interna-
tional law principle that a treaty is to be in-
terpreted as a whole and in "light of its
object and purpose." Lord McNair, among
the most respected scholars in this field, has
written:"
"Closely connected with the primary duty
of seeking to ascertain, and giving effect to,
the common intention of the parties is the
duty to bear in mind what may be called the
overall aim and purpose of the treaty. . .
Thus in the Advisory Opinion upon the
Competence of the International Labour
Organization to Regulate the Personal
Work of Employers, the Permanent Court
found no difficulty in holding that inability
to make such regulations was 'clearly incon-
sistent with the aim and the . . . scope of
Part XIII' (of the Treaty of Versailles), and
that if any such limitation 'had been intend-
ed. it would have been expressed in the
Treaty itself.' To the same principle may be
related the duty to construe a treaty as a
whole and not to focus attention upon any
of its provisions in isolation. There Is ample
evidence of this practice."
Article 31 (b) also provides that the "sub-
sequent practice in the application of the
treaty. . . shall be taken into account in in-
terpreting the treaty."
This is commonly known as the "practice
of states" doctrine and is consistent with
the customary international law that pre-
ceded the Vienna Convention. Lord McNair
has written:,4
". . when there is a doubt as to the
meaning of a provision or an expression con-
tained in a treaty, the relevant conduct of
the contracting parties after the conclusion
of the treaty . . . has a high probative
value as the intention of the parties at the
time of its conclusion. This is both good
sense and good law."
Thus, the doctrine of the "practice of
states" holds that courts will consider how
the parties to the treaty have acted in im-
plementing the agreement. The basic con-
cept is simple, Le. if there is some ambiguity
in the meaning of a provision, but if the
parties have conducted themselves consist-
ent with a certain interpretation of that
provision, then the courts will give great
weight to that conduct as evidence of the
meaning of the provision.
The current draft of the American Law
Institute's Restatement of the Law is in
accord both with respect to interpretation
of text and the "practice of states" doc-
trine:'? _
Section 325. INTERPRETATION or Isms:RNA-
norm AGREEMENTS:
(1) An international agreement is to be in-
terpreted in good faith in accordance with
the ordinary meaning to be given to its
terms in their context an in the light of its
objects and purpose.
(2) Any subsequent agreement between
the parties regarding the interpretation of
the agreement, or subsequent practice be-
tween the parties in the application of the
agreement is to be taken into account in in-
terpreting the agreement.
In the accompanying comment, the ALI
Reporters state that, although the United
States has not ratified the Convention, this
section "represents what states generally
accept and the United States has also ap-
peared willing to accept it."
With respect to recourse to the negotiat-
ing history, Article 32 of the Vienna Con-
vention states.
"Recourse may be had to supplementary
means of interpretation, including the Pre-
paratory work of the treaty and the circum-
stances of its conclusion, in order to confirm
the meaning resulting from the application
of article 31, or to determine the meaning
when the interpretation according to article
31;
"(a) leaves the meaning ambiguous or ob-
scure: or
"(b) leads to a result which is manifestly
absurd or unreasonable." (Emphasis added.)
Thus, under the Vienna Convention, one
does not look to the negotiating history
unless the means of interpretation described
In Article 31 prove inadequate or lead to a
result which is manifestly absurd.
Despite this stricture, courts in the United
States and the International Court of Jus-
tice have been more willing to review the
negotiatingsrecord than is suggested by Arti-
cle 32 of the Convention. '8 The United
States Supreme Court, in Nielsen V. John-
son, said: '7
"When [a treaty's I meaning is uncertain.
recourse may be had to the negotiations and
diplomatic correspondence of the contract-
ing parties relating to the subject matter
and to their own practical construction of
It.,'
The comment in the ALI Restatement
states that "American courts are more will-
ing than those of many other states to look
outside the instrument to determine its
meaning in the light of its purpose and the
intent of the parties." '8 Thus under the ap-
proach taken, by either the Vienna Conven-
tion or the U.S. courts, it is clear that resort
may be had to the negotiating history if
other steps fail to reveal the meaning of a
particular provisions.
The Traditional Interpretation maintains
that the Treaty text is clear on its face. To
the extent that other sources of interpreta-
tion are consulted, the Traditional Interpre-
tation maintains that they are consistent
with the traditional reading of the treaty's
text.
Because Sofaer concludes that the Treaty
text is ambiguous, he contends that the ne-
gotiating record must be examined to deter-
mine the meaning of the Treaty. In this
regard, the Reinterpretation holds that the
negotiating record, which is classified, clear-
ly supports the reinterpretation. The Rein-
terpretation also considers statements made
to the Senate during its ratification pro-
ceedings, and concludes that they support
the broader view. In other words. the Rein-
terpretation concludes that the Nixon Ad-
ministration did not present the Traditional
Interpretation to the Senate in 1972. Final-
ly. the Reinterpretation considers U.S. and
1972-1985 and concludes that the record Is
Soviet Post-ratification statements between
mixed. The Reinterpretation however. dis-
putes the view that successive U.S. adminis-
trations have consistently endorsed the Tra-
ditional Interpretation. As previously noted,
I shall address each of these assertions in
ms/ three reports.
SECTIOR III: SENATE RATIFICATION
PROCEEDINGS
A. Introduction
The ABM Treaty was signed by President
Nixon and General Secretary Brezhnev on
May 26, 1972. On the same day, the heads of
the two negotiating delegations, Ambassa-
dors Smith and Sernencm initialled a sepa-
rate set of Agreed Statements. This includ-
ed Agreed Statement D. which addressed
the procedure for avsolving issues that
might arise regarding ABM systems and
components using exotics.
Treaty ratification hearings before the
Senate Armed Services Committee began on
June 8, and the Senate Foreign Relations
Committee commenced its proceedings on
June 19. In addition, both the House Armed
Services Committee and the Rouse Foreign
Relations Committee held hearings on the
proposed agreements. The Senate. after a
lengthy debate on August 3. gave its consent
to ratification of the Treaty by a vote of 88-
2.
The published records of all of these pro-
ceedings, as well as the classified transcripts
of the Senate Armed Service Committee
and the Foreign Relations Committee hear-
ings, have been examined as part of this
study. In view of the Senate's constitutional
role in the treaty-making process, my exam-
ination focuses on the nine days of hearings
held by the Senate Armed Services Commit-
tee, the six days of hearings conducted by
the Senate Foreign Relations Committee,
and the Senate floor debate. The period be-
tween May 26 and August 3 has been exam-
ined with a view towards identifying three
categories of statements:
I. Those which explicitly support the rein-
terpretation.
II. Those which explicitly support the tra-
ditional view.
III. Those which generally address the
subject of testing, development, or deploy-
ment of exotics but which do not explicitly
support either interpretation.
B. Analysis of statements
The following sets forth the results of this
review.
I. The Analysis of the Reinterpretation has
not identified a single statement in the
record of the ratification proceedings which
explicitly supports its case.
The Sofaer analysis has not identified,
nor did I find, any statements in the record
In which any Senator or any Nixon Admin-
istration official explicitly stated that devel-
opment and testing of mobile/space-based
exotics was permitted.
II. The record contains a series of authori-
tative statements explicitly supporting the
traditional view that the treaty prohibits
testing and development of mobile/space-
based exotics.
In a series of statements, including au-
thoritative written statements submitted for
the record, key administration officials and
Senators made It clear that the Treaty's
prohibition on testing and development of
mobile/space-based ABM systems or compo-
nents applied to exotics.
a. At the first hearing, the Executive
Branch set forth the Traditional Interpreta-
tion of the Treaty, expressly discussing the
difference between fixed, land-based ABMs
and mobile/space-based ABMs in the con-
text of exotics.
neclassified and Approved For Release 2013/01/23 CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
March 11, 1987 WONGRESSIONAL RECORD ? SEIPTE S 2977
The question of exotics was raised in the
first Senate hearing that considered the
Treaty. Senator Goldwater, in a question
for the record to Secretary of Defense
Laird, noted that he had "long favored"
moving ahead with space-based ABMs capa-
ble of conducting boost-phase intercepts
using "shot, nuces (sic.), or lasers," and
asked whether it was correct that nothing
In the Treaty "prevents development to pro-
ceed in that direction." I
The written reply from DOD distin-
guishes between development of fixed, land-
based ABMs (which is permitted by the
Treaty) and development of mobile/space-
based ABMs (which is prohibited). The
reply expressly related these provisions to
lasers, an "exotic" ABM component: 20
REPLY OF SECRETARY LAIRD TO QUESTION FROM
SENATOR GOLDWATER
"With reference to development of a
boost-phase intercept capability or lasers,
there is no specific provision in the ABM
Treaty which prohibits development of such
systems. There is, however, a prohibition on
the development, testing, or deployment of
ABM systems which are space-based, as well
as sea-based, air-based, or mobile land-
based. The U.S. side understands this prohi-
bition not to apply to basic and advanced re-
search and exploratory development of
technology which could be associated with
such systems, or their components. There
are no restrictions on the development of
lasers for fixed, land-based ABM systems.
The sides have agreed, however, that de-
ployment of such systems which would be
capable of substituting for current ABM
components, that is, ABM launchers, ABM
interceptor missiles. and ABM radars, shall
be subject to discussion in accordance with
Article XIII (Standing Consultative Com-
mission) and agreement in accordance with
article XIV (amendments to the treaty)."
(Emphasis added.)
This statement is particularly significant
because it embodies a formal, written Exec-
utive Branch response. It clearly sets forth
the Traditional Interpretation of the Treaty
with respect to exotics, permitting develop-
ment and testing only in a fixed, land-based
mode. The reply makes it clear that mobile/
space-based exotics are subject to the com-
prehensive ban on development, testing, and
deployment, with the understanding?as
stated in Secretary Laird's reply?that the
treaty only permits "basic and advanced re-
search and exploratory development."
It is also noteworthy that the reply clear-
ly links the ban on development of mobile/
spaced-based ABM laser systems to Article
V of the Treaty. Article V contains a com-
prehensive ban on mobile/space-based.
ABM systems. Secretary Laird's express
linkage between mobile/space based exotics
and Article V directly refutes the Reinter-
pretation's analysis of the Treaty's text,
which asserts that Article V applies only to
components existing in 19'72 (i.e., missiles,
launchers, and radars).
The detailed Executive Branch reply was
omitted from an October 30, 1985 analysis
of the ratification debate submitted to the
Senate Armed Services Committee by
Sofaer on November 21, 1985." This omis-
sion was brought to the attention of the
Committee on January 6, 1986 in a letter
from John Rhinelander, the legal adviser to
the U.S. SALT I Delegation. In a subse-
quent analysis of the ratification debate
published in the June 1986 Harvard Law
Review, Sofaer conceded in a footnote that
the DOD reply to Goldwater supports the
Traditional Interpretation.22
b. An exchange between Senator Henry
Jackson and DOD's Director of Research
and Engineering confirmed the Treaty's ban
on testing and development of mobile/
spaced-based exotics.
During the Senate debate on the SALT I
accords, which included the ABM treaty,
the late Senator Henry Jackson, a senior
Member of the Armed Services Committee,
conducted a rigorous inquiry into the agree-
ments, with a profound impact on the condi-
tions of Senate acceptance. From the outset,
he exhibited a keen sensitivity to the issue
of exotics by focussing on laser ABMs. For
example, just five days after the Treaty's
signing, he made a statement sharply criti-
cal of the Army's reputed cancellation of a
research involving laser ABSs.23
When Secretary Laird came before the
Committee on June 6, he quickly assured
Senator Jackson that no such contract has
been cancelled. When Senator Jackson
asked about ABM Treaty limits in this area,
Secretary Laird gave a general reply?
noting only that "research and development
can continue, but certain components and
systems are not to be developer"?without
getting into the distinction between fixed,
land-based systems and mobile/space-based
systems."
Senator Jackson pursued that distinction
in a June 22 hearing during testimony by
Dr. John Foster. Director of Defense Re-
search and Engineering, and Lt. Gen.
Walter Leber, the Program Manager of the
Army's Safeguard ABM system. This hear-
ing involved a careful discussion of Treaty's
limits regarding development of ABMs
using exotics, with a specific focus on the
distinction between fixed, land-based sys-
tems and mobile-space based systems.
Senator Jackson began by noting that
there were limitations in the Treaty on
lasers and then asked whether the agree- _
ment prohibited "land-based laser develop-
ment?" (Emphasis added.) 25
Dr. Foster replied, "No sir; it does not."
The text of the printed hearing reads as fol-
lows:
LASER ABM SYSTEM
Senator JACKSON. Article V says each
party undertakes not to develop and test or
deploy ABM systems or components which
are sea based, air based, space based or
mobile land based.
Dr. FOSTER. Yes sir, I understand. We do
not have a program to develop a laser ABM
system.
Senator JACKSON. If it is sea based, air
based, spaced based or mobile land based. If
it is a fixed, land-based AMB system, it is
permitted; am I not correct?
Dr. FOSTER. That is right.
Senator JACKSON. What does this do to
our research?I will read it to you: section 1
of article 5?this is the treaty: "each party
undertakes not to develop"?it hits all of
these things?"not to develop, test or deploy
ABM systems." You can't do anything; you
can't develop; you can't test and finally, you
can't deploy. It is not "or".
Dr. FOSTER. One cannot deploy a fixed,
land-based laser ABM system which is capa-
ble of substituting for an AMB radar, ABM
launcher, or ABM interceptor missile.
Senator JACKSON. You can't even test; you
can't develop.
Dr. FOSTER. You can develop and test up
to the deployment phase of future ABM
system components which are fixed and
land based. My understanding is that you
can develop and test but you cannot deploy.
You can use lasers in connection with our
present land-based Safeguard system pro-
vided that such lasers augment, or are an
addendum to, current ABM components. Or,
in other words, you could use lasers as an
ancillary piece of equipment but not as one
of the prime components either as a radar
or as an interceptor to destroy the vehicle.
When Senator Jackson suggested that
even research on ABM lasers might be pro-
hibited, Dr. Foster said, "No." Interposed
between Senator Jackson's question and Dr.
Foster's answer is the following insert for
the record:26
"Article V prohibits the development and
testing of ABM systems or components that
are sea-based, air-based, space-based, or
mobile land-based. Constraints imposed by
the phrase 'development and testing' would
be applicable only to that portion of the 'ad-
vanced development stage' following labora-
tory testing, i.e., that stage which is verifia-
ble by national means. Therefore, a prohibi-
tion on development?the Russian word is
'creation'?would begin only at the stage
where laboratory testing ended on ABM
components, on either a prototype or bread-
board model."
The importance of this submission as an
authoritative statement of Nixon Adminis-
tration policy is underscored by the original
transcript of this hearing (currently main-
tained in the Armed Services Committee ar-
chives), which reveals two key points. First,
Dr. Foster pledged to submit the insert
after Senator Jackson had declared that
"We had better find out" exactly how the
Treaty applied to research and development
In this area Second, the transcript reveals
that Dr. Foster declared that in order to
clarify this issue, the submission would re-
flect a detailed review of the negotiating
record.
The unedited exchange reads as follows:"
Dr. FOSTER. I think you can engage in re-
search or development of laser land based
ABM systems; you cannot deploy them as a
kill mechanism against ICBMs. (Emphasis
added.)
Senator JACKSON. Well, that is something
we had better find out about it. I would
[sic.] you would?
Dr. FOSTER. I would be glad to go through
the record, Senator Jackson, in some detail
and try to clarify this.
As is the normal practice in editing con-
gressional hearings, the comments about
what was to be submitted for the record was
deleted and replaced by the actual submis-
sion.
Several observations about the extensive
exchange between Senator Jackson and Dr.
Foster deserve emphasis. First, it includes a
formal, written submission, which provided
the Executive Branch with an opportunity
to prepare an official coordinated statement
after review of the negotiating record. As
such, it clearly represents an authoritative
statement of the Administration's position.
Second, the fact that the statement refers
to Article V (the Treaty's ban on testing, de-
velopment, and deployment of mobile/
space-based ABMs) in the context of lasers
(an "exotic" component) again refutes the
Reinterpretation's premise that Article V
does not apply to ABMs using exotics.
The Jackson-Foster exchange directly
contradicts the Reinterpretation of the
Treaty. The credibility of the Sofaer analy-
sis if further undermined by the distorted
manner in which it treats this crucial dia-
logue between a leading Senator and high-
level Nixon Administration witness. For ex-
ample:
(1) The version of this extensive Jackson-
Foster exchange presented in Sofaer's Octo-
ber, 1985 analysis of the ratification pro-
ceedings and in Sofaer's June, 1986 Harvard
Law Review article advocating the reinter-
pretation is greatly abbreviated. While the
Reinterpretation acknowledges that Dr.
Foster's comments support the Traditional
Interpretation, the only portion of the
entire exchange which it cites is the follow-
ing: 28
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
S Declassified and Approved For Release 2013/01/23 :_CIA-RDP891,90234R0001000300115a-7cn 1.987
Dr. POSTER. One cannot deploy a fi ,
land-based laser ABM system which is capa-
ble of substituting for an ABM radar. ABM
launcher. or ABM interceptor missile. . . .
You can develop and test up to the develola
ment phase of future ABM system compo-
nents which are fixed and land based.
Foster's explicit confirmation that devel-
opment and testing of space-based, or
mobile land-based laser ABMs was prohibit-
ed is omitted in the Reinterpretation. There
is also no mention in the Reinterpretation
of Foster's written submission nor its link-
ing the discussion of limits of laser ABMs to
Article V.
(2) Dr. Foster, a Presidential appointee,
was the highest ranking technical official,
and third-ranking civilian in the Defense
Department. He had served in his position
since 1965. Nonetheless, the Sofaer analysis
tries to disparage his testimony by stating
Foster was "not involved in the drafting or
negotiation of the Treaty." 2' The sugges-
tion that the Director of Defense Research
and Engineering would not have acquainted
himself thoroughly with the Treaty's effect
on programs under his supervision prior to
representing the Administration before the
Armed Services Committee is absurd. At any
rate, as discussed above, the transcript con-
firms that Dr. Foster's written submission
was based on a detailed review of the negoti-
ating record.
(3) Sofaer's account of the exchange ex-
cises Senator Jackson's half of this dialogue
in its entirety. As a result, anyone reading
this analysis would not know that Senator
Jackson had acquired a detailed understand-
ing of the treaty limits in this area or,
indeed, that the Senator took the lead in
drawing out of the witness explicit confir-
mation of these restrictions.
(4) As a result of this omission, the only
mention of Senator Jackson in Sofaer's Oc-
tober, 1985 analysis of all of the Armed
Services Committee's ratification hearings is
in a discussion of a hearing on July 19,
which will be considered below. In a summa-
ry comment on Senator Jackson's July 19
statements, the Reinterpretation concludes:
"Fairly read. Senator Jackson's comments
do not address future systems." 3? By omit-
ting the extensive June 22 Jackson/Foster
exchange on laser ABMs (as well as other
instances when Senator Jackson querried
witnesses on the question of laser ABMs, in-
cluding a highly classified session on June
26 with CIA Director Richard Helms), the
Reinterpretation is then able to claim in a
paragraph summarizing all congressional
hearings during the ratification proceedings
that "Senator Jackson's comments do not
appear to address future systenas." " So-
faer's assertion that Senator Jackson never
addressed the question of limits on laser
ABMs during the entire Senate debate on
the ABM Treaty is flatly contradicted by
the record of the debate.
c. In a July 19 exchange with Senator
Jackson, General Palmer confirmed that the
JCS supported the limitation under which
testing and development of exotics was re-
stricted to fixed, land-based systems.
The record of the July 19 hearing before
the Armed Services Committee not only re-
pudiates the claim that Senator Jackson did
not address future systems, it also contains
a crucial passage confirming the Joint
Chiefs' understanding of the difference be-
tween fixed, land-based and mobile/space-
based exotics in terms of the restrictions on
development and testing.
This hearing involved an extensive explo-
ration of Treaty's limits on exotics, focusing
on laser ABMs. The key exchange occurred
between three Senators (Goldwater, Jack-
son and Dominick), and three Executive
Branch witnesses (General Ryan, Chief of
Staff of the Air Force, General Palmer.
Acting Chief of Staff of the Army, and Lt.
Gen. Leber, Project Manager of the Safe-
guard ABM Program.) This exchange covers
seven pages of the printed hearing. During
this exchange, the word "laser" was used
thirteen times, descriptions of or references
to lasers were made six other times, and the
phrase "futuristic systems" was mentioned
three times.
The following discussion, which was initi-
ated by a question from Senator Goldwater
as to whether the deployment of laser
ABMs was banned, is representative of the
dynamic, back-and-forth character of this
discussion:32
General LEBER ? ? ? The only restriction is
that you would not substitute a laser device
for one of the components of your ABM
system.
Senator JACKSON. Would the Senator yield
right there?
Senator GOLDWATER. Yes, sir.
Senator JACKSON. Can you tell us how
that is going to be monitored?
General LEBER. This would be monitored
through the commission General Palmer
has mentioned, the Joint Commission. . .
Senator Jacirsora Without some sort of
onsite inspection, we can't monitor "devel-
opment." can we?
General LEBER. I think we can detect test-
ing of laser devices in an ABM mode; I think
we can without onsite inspection.
Senator JACKSON. Testing, yes; but devel-
opment, how are you going to monitor that?
From this colloquy, it is evident that Sen-
ator Jackson was concerned about the ver-
ifiability of the Treaty limits on the devel-
opment and testing of laser ABMs, and he
demonstrated his mastery of the details in
this area by ensuring that the Committee
obtained clarifying details from the wit-
nesses. The following exchange, also on the
subject of the verifiability of limits on the
development and testing of laser ABMs, is il-
lustrative of Senator Jackson's leading role
in making it clear that only fixed, land-
based exotics were exempt from the prohibi-
tion against testing and development:"
Senator DOMINICK. There isn't any ban, as
I understand it, on research and develop-
ment on either side.
General RYAN. That's right.
Senator DOMINICK. So, therefore, the on-
site inspection is no different; the offsite in-
spection is no different now than it was
before?
Senator JACKSON. Yes, but under Article V
of the ABM Treaty "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."
Senator GOLDWATER. Fixed based.
Senator JACKSON. The fixed-based ABM is
exempt.
Senator GOLDWATER. Fixed based.
Senator JACKSON. The fixed-baseve (sic].
Senator Gotnwarra. We could then re-
place the Sentry with the laser if it became
effective? (Emphasis added.)
Senator JACKSON. The prohibition runs to
sea based, air based, space based, or mobile
land based ABMs.
Senator GOLDWATER. Not fixed land?
Senator JACKSON. That's right. That is
exempt. I am just pointing this out. In those
other areas, it is prohibited and, develop-
ment is also prohibited, (Emphasis added.)
This exchange directly refutes the Rein-
terpretation by demonstrating the under-
standing of these key Senators as to the dif-
ference between permissible testing and de-
velopment of fixed, land-based exotics and
prohibited testing and development of
mobile/space-based exotics.
During the same hearing, Senator Jackson
also questioned the witness about General
mer's broad statement that the treaty
"does not limit R&D on futuristic sys-
tems. 34 Senator Jackson. expressing con-
cern about the generality of this response,
drew the witnesses' attention to Article V's
prohibition on development of mobile ABM
systems. General Ryan noted the distinction
between permissible development of fixed,
land-based systems and the prohibited de-
velopment of mobile/space-based systems.
Finally, General Palmer provided an au-
thoritative statement on the prohibition on
development of mobile/space-based exotics:
General PALMER. I would like to come back
to the question.
Senator JACKSON. You are here in a pro-
fessional capacity and we need your profes-
sional judgment.
General PALAIER. On the question of the
ABM, the facts are that when the negotia-
tion started the only system actually under
development, in any meaningful sense, was
a fixed., land-based system. As the negotia-
tions progressed and the position of each
side became clear and each understood the
other's objectives better, it came down to
the point where to have agreement it ap-
peared that?this is on the anti-ballistic mis-
sile side?this had to be confined to the
fixed, land-based system. The Chiefs were
consulted. I would have to go to a closed ses-
sion to state precisely the place and time.
They were consulted on the question of
qualitative limits on the AB (sic) side and
agreed to the limits that you see in this
treaty.
Senator JACKSON. Even though it cannot
be monitored?
General PALMER. Yes.
Senator JACKSON. I just wanted that; so
the Chiefs went along with the concept here
that involved?
General PALMER. A concept that does not
prohibit the development in the fixed, land-
based ABM system. We can look at futuris-
tic systems as long as they are fired and
land based.
Senator JACKSON. I understand.
General PALMER. The Chiefs were aware of
that and had agreed to that and that was a
fundamental part of the final agreement.
(emphasis added.) "
Sofaer's analysis of this discussion omits
Palmer's crucial closing comment that the
JCS were aware of the limits on develop-
ment and testing of laser ABMs, had agreed
to them, and recognized that this was "a
fundamental part of the final agreement."
Thus, the record demonstrates that Sofaer's
assertion that Senator Jackson did not ad-
dress the question of exotics during the rati-
fication debate is a complete and total mis-
representation. It also underscores the inad-
equacy of its analysis by its omission of this
additional, and authoritative, confirmation
that the Treaty banned the development
and testing of all but fixed, land-based
exotics.
It is also noteworthy that Senator Jack-
son and the Executive Branch witnesses
clearly cited the prohibition on testing and
development of mobile/space-based systems
in Article V of the treaty as the authority
for the prohibition on testing and develop-
ment of missile/space based ABM using
exotics. This further undermines the Rein-
terpretation's analysis of the Treaty's text
In which it asserts that Article V should not
be read as applying to mobile/space-based
exotics.
d. Opposition to the treaty was based on
the prohibition against testing and develop-
ment of mobile exotics?a limitation com-
monly understood by both proponents and
opponents of the treaty.
On June 29, Senator James Buckley testi-
fied before the Foreign Relations Commit-
neclassified and Approved For Release 2013/01/23 : CIA-RDP89T00234R00010003002577Alsmmongr
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
S 2979
ffi'ILLILit .zA, Je701 9.-TIVE.aall./1?1t1.1... ? J.C.1
tee. By that time, he had emerged as a vocal
critic of the ABM Treaty and was later one
of only two Senators who voted against it.
During his testimony, Senator Buckley was
Questioned by Senator Fulbright, Chairman
of the committee, Senator Sparkman, who
managed the Treaty debate on the Senate
floor, and Senator Cooper, who had played
one of the leading roles in the ABM deploy-
ment debate in the late 1960s.
Senator Buckley opposed the Treaty pri-
marily because it prohibited the develop-
ment, testing, and deployment of space-
based ABMs using exotics:36
Thus the agreement goes as far as to pro-
hibit the development, test or deployment
of sea, air or space-based ballistic missile de-
fense systems. This clause, in Article V of
the ABM Treaty, would have the effect, for
example of prohibiting the development and
testing of a laser-type system based in space
which could at least in principle provide an
extremely reliable and effective system of
defenses against ballistic missiles. The tech-
nological possibility has been formally ex-
cluded by this agreement. There is no law of
nature that I know of that makes it impossi-
ble to create defense systems that would
make the prevailing theories obsolete. Why,
then, should we by treaty deny ourselves
the kind of development that could possibly
create a reliable techniques for the defense
of civilians against ballistic missile attack?
(emphasis added.)
In response to a question by Senator
Sparkman, Senator Buckley made it clear
that he was opposed to the Treaty not be-
cause it prohibited an ABM defense using
then-current systems, but rather because it
prohibited the development of new space-
based ABM systems:37
Senator SPARKMAN. Senator Buckley, I
think you make your position clear. Now, as
I understand it, you do not agree with the
President in his viewpoint on this, nor the
Joint Chiefs of Staff?
Senator BUCKLEY. ? ? ? Where I am in dis-
agreement ? ? is the philosophy of a
mutual deterrence ? ? ? Now on the basis of
existing technology, I can see the reasoning
for this, although there is a question about
the effectiveness of available ABM technol-
ogy; but I do question the morality of decid-
ing now for all time that we will preclude
ourselves from developing new concepts
which at a later date could mean that the
city of Washington or New York or San
Francisco or Detroit could not be Meaning-
ful protected ? ? ?.
The record of the hearing indicates that
these three senior members of the commit-
tee of principal jurisdiction over the Treaty
well-understood the basis for Senator Buck-
ley's opposition. Indeed, Senator Cooper,
while not agreeing with Senator Buckley's
opposition to the Treaty, praised the wit-
ness for his testimony, saying: 38
I would like to say I think that Senator
Buckley has performed a useful service here
today. You have raised practically every
question I think that might have been con-
sidered by the negotiators. Your paper
shows the very thorough knowledge you
have of the negotiations and of the systems.
Your questions are very valuable because
the questions you raised, in their technical
application at least, are correct.
On August 3, during debate on the treaty
on the floor of the Senate, Senator Buckley
repeated the main themes he voiced during
his appearance before the Foreign Relations
Committee, including the following princi-
pal criticism of the treaty:3?
"Thus the agreement goes so far as to pro-
hibit the development, test or deployment
of sea, air or space based ballistic missile de-
fenses. This clause, in Article V of the ABM
treaty, would have the effect, for example.
of prohibiting the development and testing
of a laser type system based in space which
could at least in principle provide an ex-
tremely reliable and effective system of de-
fenses against ballistic missiles. This techno-
logical possibility has been formally ex-
cluded by this agreement."
Senator Buckley's testimony before the
Senate Foreign Relations Committee clearly
confirms the meaning of the treaty as pre-
sented to the Senate by the Executive
Branch. Despite the clear, unrebutted
impact of this testimony, it is omitted com-
pletely from Sofaer's October, 1985 analysis
and his 1986 Harvard Law Review article.
Sofaer cities Buckley's floor speech, but
denigrates its significance by raising "the
possibility that opponents of the treaty may
have tries to exaggerate its limitations."'"
In view of the consistency between Buck-
ley's statement and the Executive Branch's
presentation of the treaty, this assertion is
without merit.
The Senate's understanding of the treaty
is underscored in the following remarks by
Senator Thurmond. delivered on the floor
of the Senate just prior to the vote on the
treaty:4,
Under the treaty, we also give up the right
to deploy any land-based systems of a new
type. At the same time we undertake 'not to
develop, test, or deploy ABM systems or
components which are sea-based, air-based,
space-bated, or mobile land-based'." (Em-
phasis added.)
The Reinterpretation acknowledges that
"Thurmond's comment could be read to in-
dicate development of future systems, other
than land-based, was prohibited."'"
III. The record contains various general
statements on the development, testing or
deployment of exotics, without reference to
their basing mode. Because these statements
do not distinguish between fixed, land-based
systems and mobile/space-based systems,
they carry little probative value either way
with respect to the correct interpretation.
The record of the ratification proceedings
contains a number of other statements
which touched on the subject of exotics.
Most of these involved a general statement
by a Senator or an administration official to
the effect that under the -Treaty, future
ABM systems based on other physical prin-
ciples could not be deployed. Other state-
ments involved general remarks that
"R&D" on lasers was permitted, but with-
out any specifity as to basing mode (i.e.
whether fixed, land-based or mobile/space-
based).
As previously noted, the reinterpretation
does not cite a single statement in the
record of the Senate ratification proceed-
ings in which a Senator or Executive
Branch official explicitly states that devel-
opment and testing of mobile/space-based
exotics is permitted under the Treaty. Con-
sequently, the reinterpretation's claim that
this record can be read to support the rein-
terpretation rests on statements which it
infers as supportive of this view. All of these
statements fall into one or the other of the
two following categories.
a. General Statements Concerning the Ban
on Deployment
In the Reinterpretation, much is made of
brief statements to the effect that the de-
ployment of exotics is banned. For example,
during his May 26, 1972 press conference.
Ambassador Smith said, "future systems
? ? ? will not be deployable unless this
treaty is amended." 43 The Reinterpretation
reads this statement as supportive of its
case, arguing that "It is unlikely that Am-
bassador Smith, the negotiator of the
Treaty, would have referred to only a ban
on deployment if he had meant testing and
development were banned as well." 44
Smith's statement that the deployment of
exotics is banned is, however, fully consist-
ent with the Traditional Interpretation.
Nonetheless, the Reinterpretation suggests
that since Smith cited the ban on deploy-
ment of exotics but omitted any mention of
a ban on their development or testing, then
he must have believed that the Treaty gave
a "green light" to such activities; that is,
that he would have gone on to say, had he
voiced his opinion on this issue, that the
Treaty permits the development and deploy-
ment of all exotics.
In short, the Reinterpretation presumes
that if Smith had believed that the Tradi-
tional Interpretation had been agreed to he
would not have said simply that "future sys-
tems ? ? ? will not be deployable unless this
treaty is amended"?he would have said
that "future systems will not be developed,
tested, or deployed unless this treaty is
amended."
There are three major problems with the
logic upon which this analysis Is based.
First, the Smith statement is true and accu-
rate on its face because under either inter-
pretation deployment of future systems
(i.e., exotics) is banned. Second, it attempts
to build a major case on what was not said.
Third. if Smith had said what the Reinter-
pretation postulates he should have said, he
would have been wrong. Why? Because
under both the Traditional Interpretation
and the Reinterpretation, the development
and testing of fixed, land-based exotics is
permitted. Development or testing of
mobile/space-based exotics is, of course,
banned under the Traditional Interpreta-
tion.
Under the logic of the Reinterpretation,
to prevent his remarks from being distorted
in the future and, at the same time, ensure
accuracy, Smith would have had been com-
pelled to turn his brief sentence into some-
thing resembling the following:
"Future systems (i.e., exotics)?whether
fixed, land-based or mobile/space-based?
will not be deployable unless the treaty is
amended. Future fixed, land-based exotics
may be developed and tested, but only at
the agreed test ranges as established under
Article IV. Future mobile/space-based exo-
tics may not be developed or tested at all in
accordance with Article V."
In summary, the assertion by the Reinter-
pretation that a speaker's belief may be in-
ferred from words he did not utter is illogi-
cal. The fact. that the Reinterpretation's
conclusions as to the Senate ratification
debate rely so heavily upon such statements
reveals the flimsiness of its case.
In addition to Smith's May 26 statements,
the following statements fall into the cate-
gory of general remarks concerning the ban
on deployment:
(1) A section in Secretary of State Rogers'
June 10 letter of transmittal, subheaded
"Future ABM Systems", which included the
following sentences: 45
"A potential problem dealt with by the
Treaty is that which would be created if an
ABM system were developed in the future
which did not consist of interceptor missiles,
launchers and radars. The Treaty would not
permit the deployment of such a system or
of components thereof capable of substitut-
ing for ABM interceptor missiles, launchers
or radars."
The Reinterpretation postulates that
Rogers should have said that the develop-
ment and testing of exotics was banned if he
believed the Traditional Interpretation had
been achieved. This overlooks the fact that
Rogers could not accurately have said this if
he believed the more restrictive position
had been achieved, since it would have been
incorrect as it applies to fixed, land-based
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23 : CIA-RDP89T00234R000100030025-7
uriNd %.3 nr..331VIN Eli, rcrkAinu ? 3tilpi E March 11, 1987
IL, am. V kJ %I
exotics. Neither did Rogers say that the de- any significance in the area of laser ABMs consideration of the agreements the terms
velopment and testing of exotics are permit- was a fixed, land-based system. As previous- of them are at last firmly in mind.
ted. Had he said this. it would in fact sup- ly noted, the Nixon administration had been In this regard, it is noteworthy that with
port the Reinterpretation, but he did not. stung by Senator Jackson's charge in early the exception of Senator Fang's floor state-
The fact that Rogers elected not to provide June that an Army laser ABM contract had ment, all of the general statements on de-
a detailed elaboration of the limits on devel- been cancelled due to the Treaty. Thus, it is ployment and R&D occurred early in the
opment and testing as it applied to fixed, not surprising that executive branch offi- ratification proceedings (i.e., in June), well
land-based versus mobile/space-based exo- cials would have sought to assure the before the extensive exploration of Treaty
tics does not support the Reinterpretation. Senate by making broad statements that limits on lasers which took place during the
(2) Two statements by Secretary Rogers R&D on laser ABMs could continue. July 19 Armed Services Committee hearing
to the Foreign Relations Committee on The following statements?all of which (and before Senator Buckley's June 29 testi-
June 19 which indicated that future are cited by the Reinterpretation in support mony before the Foreign Relations Commit-
"exotic" types of ABMs, such as lasers, of its case?fall into this category: tee).
could not be deployed.46 The Reinterpreta- (1) A June 20 reply by Secretary Laird to Finally, the prohibition on testing and de-
tion postulates that Rogers should have said a question by Senator Thurmond: 4 5
that the development and testing of exotics Senator THURMOND. I understand we have velopment of exotics was squarely presented
was banned if he believed the Traditional had R&D programs, such as the develop-
to the Senate by the Executive Branch. and
Interpretation had been achieved. This ment of the laser-type ABM system. Is there that policy choice (but not the treaty inter-
overlooks the fact that Rogers could not ac- a good reason why we should forever pre- pretation) was vigorously challenged by
curately have said this if he believed the dude the possibility of developing a truly Senator Buckley. At no point during the
more restrictive position had been achieved, effective defense of our cities if our technol- proceedings did any Executive Branch wit-
since it would have been incorrect as it ap- ogy should make one available? ness or Senator say "no, that interpretation
plies to fixed, land-based exotics. Neither Secretary LAIFU). ? ? ? The Treaty, of is wrong, the treaty does not prohibit such
did Rogers say that the development and course, does make such deployments contin- testing." Indeed, during the pointed discus-
testing of exotics was permitted. Had he gent upon treaty amendment, but it does sions of exotics involving the distinction be-
said this, it would in fact support the Rein- permit research and development on the on- tween fixed, land-based ABMs and mobile
terpretation, but he did not. The fact that going technology which we have in these ABMs, not one witness or Senator ever
Rogers elected not to provide a detailed fields, stated that deployment and testing of
elaboration of the limits on development (2) A June 22 exchange between Dr. mobile/space-based exotics was permitted.
and testing as it applied to fixed, land-based Foster and Senator Smith: 50 The record of the ratification proceedings
versus mobile/space-based exotics does not Senator &dim. In other words, the laser, supports the following conclusions about
support the Reinterpretation. if it was developed to the ultimate, could the scope of the Treaty.
(3) A similar comment by Ambassador not be used at one of the two sites. Executive Branch witnesses clearly stated
Smith at the same hearing.?7 The Reinter- Dr. FOSTER. Yes, its deployment would be that development and testing of mobile/
pretation postulates that Smith should have prohibited by the Treaty ? ? '`. space-based exotics was banned, while devel-
said that the development and testing of ex- Senator SMITH. But that will not slow us opment and testing of fixed, land-based exo-
otics was banned if he believed the Tradi- up or slow us down on continued research tics was permitted.
tional Interpretation had been achieved, and development of the laser, will it Key members of the Senate (including
This overlooks the fact that Smith could Dr. FOSTER. No, Senator, it will not. Senators Henry Jackson. Barry Goldwater,
not accurately have said this if he believed (3) A statement by Ambassador Smith to John Sparkman, and James Buckley) were
the more restrictive position had been Senator Smith at the same hearing that de- directly involved in the dialogue and debate
achieved, since it would have been incorrect velopment but not deployment of ABM sys- concerning the implications of the treaty,
as it applies to fixed, land-based exotics. terns based on "different physicial princi- which the record indicates they clearly un-
Neither did Smith say that the development pies" was permitted. This statement made derstood to ban testing and development of
and testing of exotics was permitted. Had he no mention of whether this was affected by mobile/space-based exotics.
said this, it would in fact support the Rein- the basing mode.,, The Reinterpretation is based on two cate-
terpretation, but he did not. The fact that (4) A statement by Ambassador Smith to gories of incomplete, imprecise, or general
Smith elected not to provide a detailed Senator Goldwater at the same hearing that statements: those which indicate that exo-
elaboration of the limits on development neither side would be precluded from the tics cannot be deployed and those which in-
and testing as it applied to fixed, land-based development of the laser as an ABM." dicate that R&D on lasers is permitted.
versus mobile/space-based exotics does not (5) A statement by Senator Fong during However, each of these statements can be
support the Reinterpretation. his August 3 floor speech which noted gen- read as consistent with either the Tradition-
(4) A June 28 prepared statement by Am- erally that research and development of al -Interpretation or the Reinterpretation.
bassador Smith during an Armed Services 'exotics" could be continued." Furthermore, all but one of these occurred
Committee hearing that no exotics could be
deployed unless the treaty was arnended.48 Conclusions early in the proceedings before clarifica-
The Reinterpretation postulates that Smith The record clearly demonstrates that the tions were brought out in the course of de-
should have said that the development and key figures in the Senate debate?Senators tailed questioning in the Armed Services
testing of exotics was banned if he believed Jackson, Buckley, Goldwater, Thurmond, Committee.
the Traditional Interpretation had been Cooper and Sparkman?understood that the The record of the Senate proceedings does
achieved. This overlooks the fact that development, testing and deployment of not support Sofaer's assertion that the
Smith could not accurately have said this if space-based "exotics" was not permitted record of the Senate ratification proceed-
he believed the more restrictive position under the treaty. ings on the ABM Treaty and statements
had been achieved, since it would have been Moreover, there was clearly a perception made at or near the the ratification period
incorrect as it applies to fixed, land-based within the Senate that. the ratification hear- "can be fairly read to support the so-called
exotics. Neither did Smith say that the de- ings had served a crucial function in clarify- broader interpretation." 55 On the contrary,
velopment and testing of exotics was per- ing the Treaty's terms. Senator Jackson the record of these proceedings makes a
mitted. Had he said this, it would in fact commented on this during his final speech compelling case for the opposite conclusion:
support the Reinterpretation, but he did on the Treaty Just prior to the vote. After that the Senate was presented with a treaty
not. The fact that Smith elected not to pro- noting the extensive hearings in the Armed that prohibited testing or development of
vide a detailed elaboration of the limits on Services Committee and the "literally hun- mobile/space-based exotics; both the propo-
development and testing as it applied to dreds" of questions he has asked, Senator nents and opponents of the treaty under-
fixed, land-based versus mobile/space-based Jackson said: 5 4 stood the agreement to have this effect; and
exotics does not support the Reinterpreta- "Several things emerged from this effort, there was no challenge to this understand-
tion. not least of all some important clarification big in the course of the Senate's approval of
b. General statements concerning research by administration spokesman of various pro- the treaty.
and development of exotics. visions of the agreements. Some of these In summary, I have examined the Rein-
The Reinterpretation also points to a provisions had been interpreted in several terpretation's analysis of the Senate ratifi-
number of statements in which a witness or different ways depending on the witness cation proceedings and found its conclusions
Senator states that lasers could be devel- commenting upon them. I believe the hear- with respect to this record not to be credi-
oped under the Treaty?without differenti- ings were helpful both in clarifying the obli- ble. I have concluded that the Nixon Admin-
ating between fixed, land-based and mobile/ gations we have undertaken and in under- istration presented the Senate with the Tra-
space-based systems. Under both interpreta- standing the implications for our future se- ditional Interpretation of the Treaty's
tions, such statements are correct as applied curity of the many limitations to which we limits on mobile/space-based exotics. I have
to fixed, land-based laser ABMs. In address- and the Soviets have agreed. Many Senators also concluded that the Senate clearly un-
ing these statements, it is important to rec- will recall the early confusion that sur- derstood this to be the case at the time it
ognize that at the time of the 1972 ratifica- rounded the first announcements of the gave its advice and consent to the ratifica-
tion debate, the only U.S. R&D program of agreements. I hope that as we begin our tion of the Treaty. In my Judgment, this
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
S 2981
conclusion is compelling beyond a re _A-
ble doubt.
This finding does not address all issues
raised by the Reinterpretation. In the two
succeeding reports, I will examine the issues
of subsequent practice and the negotiating
record, and any final judgments must incor-
porate those assessments. Nonetheless. the
finding that the Senate approved the ABM
Treaty on the basis of its clear understand-
ing and acceptance of the traditional inter-
pretation has serious ramifications for exec-
utive branch conduct. These implications
will be addressed in the following section.
SECTION IV: IMPLICATIONS FOR EXECUTIVE
BRANCH CONDUCT
A. The novel attempt to dismiss the sig-
nificance of statements during ratification
proceedings ignores basic principles of
treaty interpretation.
In recent weeks, the State Department
has raised a new theory, apparently plead-
ing its case in the alternative. State has
argued that regardless of whether the ratifi-
cation proceedings support the the Reinter-
pretation, Executive Branch testimony pre-
sented to the Senate during the treaty-
making process can be disregarded because
it "has absolutely no standing" with the So-
viets. In my opinion, this argument is incor-
rect in the context of the ABM Treaty, and
is squarely in conflict with the constitution-
al role of the Senate.
Recent Soviet statements indicate that
they now consider themselves bound by the
Traditional Interpretation. For example, in
an October 19, 1985 article in Pravda, Mar-
shall Sergei Akhromeyev, the Chief of the
Soviet General Staff, stated: "Article V of
the Treaty absolutely unambiguously bans
the development, testing, and deployment
of ABM systems or components of space or
mobile ground basing, and, moreover, re-
gardless of whether these systems are based
on existing or 'future' technologies." 56 The
Reagan Administration has not argued that
the Soviets do not now claim to be bound by
the Traditional Interpretation. Rather, the
administration's position?as stated by
Sofaer?is that "only after the United
States announcement of its support for the
broader interpretation in October 1985 did
the Soviet Union begin explicitly to articu-
late the restrictive interpretation."
Since the Soviets clearly agree with the
traditional interpretation, the State Depart-
ment's suggestion that statements made by
U.S. officials during ratification proceedings
have no standing with the Soviets is a curi-
ous argument. Let us assume, however, that
the Soviets were now asserting that U.S.
statements during the ratification proceed-
ings had "no standing" with them. Would
the U.S. have any basis in international law
for relying on the statements to the Senate
if we were insisting that the Soviets comply
with the traditional view?
As a matter of international law, the ac-
tions of the parties, including their state-
ments, provides an important guide to the
meaning of a Treaty. As Lord McNair notes
in his classic treatise, The Law of Treaties,"
"when there is a doubt as to the meaning of
a provision or an expression contained in a
treaty, the relevant conduct of the parties
after conclusion of the treaty (sometimes
called the 'practical construction') has a
high probative value as to the intention of
the parties at the time of its conclusions."56
McNair also states that "when one Party
in some public document such as a statute
adopts a particular meaning, circumstances
can arise, particularly after the lapse of
time without any protest from the other
party, in which that evidence will influence
a tribunal." 89 Furthermore, "(w)hen one
party to a treaty discovers that other par-
ties to a treaty are placing upon it an inter-
pretation which in the opinion of the
former it cannot bear, and it is not practical
to secure agreement upon the matter, the
former party should at once notify its dis-
sent to the other parties and publish a rea-
soned explanation of the interpretation
which it places upon the term in dispute." 66
This is similar to the proposition under U.S.
domestic law, that "if one party knows or
has reason to know that the other party in-
terprets language in a particular way, his
failure to speak will bind him to the other
party's understanding." 6) Although not
necessarily binding as a matter of interna-
tional law, the failure to object to a publicly
announced interpretation by another party
to a treaty is clearly relevant to the treaty's
meaning."
In the case of the ABM Treaty, these
principles take on even greater significance
in view of attendance by Soviet officials at
the Senate hearings on the agreement.
Indeed, Senators Goldwater and Jackson
noted the presence of one such Soviet offi-
cial?who was apparently a regular atten-
dee?during an extensive discussion with
Nixon Administration officials during a July
19 Armed Services Committee hearing that
dealt at length and in great detail with the
specific question of the Treaty's limitations
in the area of laser ABMs." Even if the
presence of Soviet observers had not been
noted for the record?which it was?it is ob-
vious that the Soviets, who understand how
our treaty-making process works, monitored
the proceedings and reviewed the public
records. Based on their clear awareness of
the interpretation being presented to the
Senate, if the Soviets chose to enter the
Treaty into force without raising an objec-
tion, the U.S. would have had a very strong
basis in law for insisiting on the original
meaning as presented to the Senate?par-
ticularly if the Soviets waited until 15 years
later to undertake a different view of the
treaty.
Aside from the immediate issue of the
ABM Treaty, it is contrary to the long-term
interests of the United States to assert that
statements made to the Senate have no
standing with other parties to a treaty. The
international community is well-aware of
the constitutional role of the Senate in the
treaty-making process, and they are on
notice that the executive branch explains
treaties to the Senate during the ratifica-
tion proceedings. It is to our national advan-
tage to ensure that such authoritative ex-
planations remain available as powerful evi-
dence of a treaty's meaning in the event of
an interpretative dispute among nations.
B. By asserting that executive branch as-
surances to the Senate may be disregarded,
the proposed reinterpretation has raised a
direct constitutional confrontation with the
Congress.
By asserting that the Executive Branch
may now disregard the views of those who
spoke for the Administration and those who
debated the issue in the Senate, the State
Department is arguing, in effect, that Ad-
ministration witnesses need not accurately
reflect the executive's understanding of a
treaty: instead, they are free to keep that
understanding a secret and may mislead the
Senate into consenting to a treaty which
has a secret interpretation different from
the meaning presented to the Senate. This
line of argument has profound implications
for the legislative process in general and the
constitutional role of the Senate In particu-
lar.
Executive branch statements to the
Senate during hearings on a proposed treaty
may provide important evidence on issues of
treaty interpretation in the international
arena. They fill an even more important
le, however, in our constitutional system.
Such statements are an integral Part of the
making of a treaty, often shaping its con-
tent, and well-known to all parties to the
proposal.
Under Article II. section 2. clause 2 of the
Constitution, the presidential power to
make treaties is subject to the requirement
for advice and consent by two-thirds of the
Senators present. Article VI, paragraph 2
provides that treaties are the supreme law
of the land, which results in giving treaties
the same force and effect as legislation en-
acted after action by both Houses of Con-
gress.
Louis Henkin, one of the leading constitu-
tional authorities in this field, has noted
that "although treaty-making has often
been characterized as an executive function
(in that special sense in which the conduct
of foreign relations is executive), constitu-
tional writers have considered the making
of treaties to be different from others exer-
cises of presidential power, principally be-
cause of the Senate's role in the process.
perhaps too because treaties have particular
legal and political qualities and conse-
quences." 64
Hamilton, in The Federalist (No. 75),
clearly illustrated the intent of the Framers
that treaty-making be a shared power be-
tween Congress and the President. based on
mutual trust: 65
"The power in question seems ? ? ? to
form a distinct department, and to belong.
properly, neither to the legislative nor the
executive. The qualities elsewhere detailed
as indispensable in the management of for-
eign negotiations, point out the Executive
as the most fit agent in those transactions:
while the vast importance of the trust, and
the operation of treaties as laws, plead
strongly for the participation of the whole
or a portion of the legislative body in the
office of making them."
Madison took the position that "there are
sufficient indications that the power of trea-
ties is regarded by the constitution as mate-
rially different from mere executive power,
and as having more affinity to the legisla-
tive than to the executive character." 66
The Senate has played a vital role in nu-
merous treaty negotiations, through means
such as the process of confirming negotia-
tors, statutory requirements for congres-
sional consultation during the negotiations
process, and informal discussions." Under
current practice, when a proposed treaty is
submitted, the Senate may consent to the
treaty, withhold its consent (either express-
ly or through inaction), or approve it with
conditions.68
Because the Senate is an active partici-
pant in the making of the treaty, the hear-
ings and debates are a vital source of infor-
mation as to what the treaty means. The
nature of the issue and the testimony of ex-
ecutive branch witnesses may lead the
Senate to attach conditions (e.g., if there is
dispute as to a provision) or forego condi-
tions (e.g.. if there is an authoritative state-
ment as to the meaning of a provision.)
The position of the State Department
sends a clear message to the Senate: you
cannot rely on our representations as to the
meaning of a treaty. The adverse conse-
quences of this proposition extend far
beyond the issues at hand regarding the
ABM treaty. Our treaty relationships in-
volve not only arms control matters, but
also trade and business matters affecting
the economic well-being of our nation. We
cannot ask the public to support proposed
treaties if the executive takes the position
that uncontradicted formal representations
by senior officials are irrelevant RS to the
meaning of a treaty.
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
viN uin.r..331viN AL RECORD - SAVE March 11, 1987
1
Because treaties are the supreme w 1
of
thP land, the position of the State Depart-
nunt, if accepted by the Executive Branch,
would compel the Senate to incorporate into
its resolution of consent an "amendment" of
"understanding" for every explanation
given by an executive branch witness lest it
be disavowed as "unilateral" afer ratifica-
tion. Treaties so laden would sink under
their own weight. It would be extemely dif-
ficult to achieve bilateral agreements, and
virtually impossible for the United States to
participate in multilateral treaties. In addi-
tion, the Senate would feel compelled to re-
quest in each case a complete record of the
negotiating history in order to ensure that
no secret understandings would emerge con-
trary to assurances given to the Senate.
In short, in an effort to save the Reinter-
pretation by asserting that Executive
Branch statements to the Senate are essen-
tially meaningless, the State Department is
risking a serious constitutional confronta-
tion involving the Executive Branch and
Congress. It would be a mistake for the Ex-
ecutive Banch to compound the problem
further by asserting that the Senate has no
role to play with respect to the meaning of
treaties. Although the President traditional-
ly has determined the position of the
United States as to the meaning of a treaty
for international purposes, his authority is
not unilateral. It is subject, for example, to
any understandings imposed by the Senate
in its consent to ratification." Moreover, as
noted by Henkin, "Congress. too, has occa-
sion to interpret a treaty when it considers
implementing legislation or other legislation
on the same subject [and has] ? ? ? claimed
the right to interpret a treaty independent-
ly, even while admitting that the Execu-
tive's interpretation is entitled to 'great
weight.' It could happen, then, that Con-
gress and the courts would in effect apply
treaty provisions differently from those
that bind the United States international-
ly-another cost of the separation of
powers." 7?
As a general proposition, the views of the
Executive on the interpretation of a treaty
normally receive great deference from the
Congress. Application of that principle In
terms of the meaning presented to the
Senate by the Executive Branch at the time
of ratification leads to an interpretation
that mobile/space-based exotics may not be
developed or tested. Under the Reinterpre-
tation, such testing and development is per-
mitted. In this situation, many in the
Senate may be inclined to apply the classic
line of cross-examination to the Executive
Branch: "Should we believe what you were
telling us then or should we believe what
you are telling us now?"
The Senate has the right to presume that
Executive Branch witnesses are informed
and truthful in their testimony, particularly
when it comes to the Senate's constitutional
role as a participant in the treaty-making
process. The State Department's assertion
that the executive, in effect, may mislead
the Senate as to the meaning of a Treaty
has the unfortunate effect of directly chal-
lenging the Senate's constitutional role. The
effect may well produce a Congressional
backlash through exercise of the power of
the purse and the power to raise and sup-
port armies in a manner that would give
effect to the original meaning of the Treaty
as presented to the Senate.
C. Conclusion
The Senate was clearly informed by the
Executive Branch that the Treaty prohibits
testing and development of mobile/space-
based ABMs using exotics. This was an issue
which key Senators viewed as a matter of
significance, and which was directly ad-
dressed by the Executive Branch during the
treaty-making process in statements to the
Senate. These circumstances raise a number
of possibilities with respect to the signifi-
cance of other evidence as to the meaning of
the Treaty:
a. If the negotiating record and evidence
of subsequent practice by the parties sup-
ports the Traditional Interpretation, the
issue would be beyond question.
b. If the negotiating record and evidence
of subsequent practice is ambiguous or in-
conclusive, there would be no basis for aban-
doning the Traditional Interpretation as
clearly understood by the Senate at the
time it gave its advice and consent on the
basis of this understanding. Absent compel-
ling evidence that the Senate was misin-
formed as to the agreement between the
United States and the Soviet Union, the
compact reached between the Senate and
the Executive Branch at the time of ratifi-
cation should be upheld.
c. If the negotiating record and evidence
of the subsequent practices of the United
States and the Soviet Union establish a con-
clusive basis for the Reinterpretation, this
would mean that the Nixon Administration
signed one contract with the Soviets and the
Senate ratified a different contract. Such a
conclusion would have profoundly disturb-
ing constitutional implications-to say the
least. In effect, the President would have to
choose between the Executive Branch's obli-
gations to the Senate and its contract with
the Soviet Union. If he did not choose to
honor the commitments the Senate, the
Senate would have to develop an appropri-
ate response or risk having its role in the
treaty-making process become meaningless.
In two reports which I intend to present
to the Senate within a few days. I will ad-
dress the subsequent practice of the two
parties and the Treaty negotiating record
With a view towards determining which of
the three situations currently confronts the
Senate.
FOOTNOTES
Treaty Between the United States of America
and the Union of Soviet Socialist Republics on the
Limitation of Anti-Ballistic Missile Systems, May
26. 1972, 23 U.S.T. 3435, T.I.A.S. No. 7503 (herein-
after cited as ABM Treaty).
. Strategic Arms Limitation Agreements: Hearings
before the Senate Foreign Relations Committee, 92d
Cong., 2d Session 5 [hereinafter cites as 1972 For-
eign Relations Hearings]
3 See Sofaer, The ABM Treaty and the Strategic
Defense Initiative, 99 Ran-. L Rev. 1971 (1986).
Sofaer also has described his analysis in a number
of congressional hearings. E.G., Strategic Defense
Initiative, Hearings Before the Senate Committee
an Armed Services, 99th Cong., let Sess. 136-91
(1985) (hereinafter cited as 1985 Senate Hearings);
Treaty Interpretation Dispute Hearing Before the
Subcommittee on Arms Control, International Secu-
rity and Science of the House Comm. on Foreign Af-
fairs, 99th Cong., 1st Sess. 4-51 (hereinafter cited
as 1985 House Hearing).
? 1985 Senate Hearings, supra note 3, at 142.
'Id. at 167.
? Id. at 141.
1985 House Hearing, supra note 3, at 10.
? 1985 Senate Hearings, supra note 3, at 264.
'Id. at 398.
tO Id.. at 399.
See note 3 supra.
"The Vienna Convention on the Law of Treaties,
Signed by the United States in Vienna, April 24,
1970, submitted to the Senate on November 22,
1971 by President Nixon but not ratified, Executive
L, 92d Congress, 1st Session, 8 I.L.M. 679.
"Lord NcNair, Law of Treaties 380-81 (1961). See
also, McDougal, Lasswell and Miller, The Interpre-
tation of Agreements and World Public Order 82-
III (1967).
" McNair, supra, at 424.
Restatement of the Law, Foreign Relations Law
of the United States (Revised), Tentative Draft No.
6-Volume 2, April 12, 1985.
Id.; McDougal, Iasswell. and Miller, supra note
13, at 132-44.
"279 U.S. 47 (1929); see Air France v. Saks. 470
U.S. 392. 396 (1985).
Restatement. supra note 15. at 325-4.
Military Implications of the Treaty on the Lion-
(lotions of Anti-Ballistic Missile Systems and the
Interim Agreement on Limitation of Strategic Of-
fensive Arms: Hearings Before the Senate Commit-
tee on Armed Services, 92d Cong., 2d Sess. 40 (1972)
thereinafter cited as 1972 Armed Services Hear-
ings).
"Id, at 40-41.
""Analysis of U.S. Post-Negotiation Public State-
ments Interpreting the ABM Treaty's Application
to Future Systems,- The Legal Adviser, U.S. De-
partment of State. October 30, 1985. reprinted in
1985 Senate Hearings, supra note 3. at 157.
"99 Hart, L. Rev. at 1982 n. 28.
"118 Cong. Rec. 19,411 (1972). Senator Jackson
said, "I was greatly disturbed, for example, to learn
Only Yesterday that Secretary Laird has ordererd
the cancellation of a theoretical study conducted by
one of our research organizations of the application
of laset technology to ballistic missile defense.
Nothing in the agreements as they have been pub-
lished would call for this action.-
" 1972 Armed Services Hearings, suipa note 19. at
31.
.. Id. at 274.
"Id.. at 275.
"Id.,, transcript at 312.
"1985 Senate Hearings, supra note 3, at 169-170.
"Id, at 171.
3. Id. at 170.
"Id. at. 171.
3. 1972 Armed Services Hearings. supra note 19, at
439.
"id. at 440.
"Id, at 438.
"lit, at 443.
"1972 Foreign Relations Hearings, supra note 2,
at 258.
"Id. at 268.
801d at 269.
"118 Cong. Rec. 26,703 (1972).
" 1985 Senate Hearings, supra note 3, at 171.
118 Cong. Rec. 26,700 (1972).
"1985 Senate Hearings, supra note 3, at 171.
"See 1972 Armed Services Hearings, supra note
19, at 99. It is noteworthy that in the same state-
ment Smith said that Article It, which defines ABM
systems covered by the Treaty, "has a very impor-
tant bearing on the whole Question of what we call
future ABM systems." This directly contradicts the
Reinterpretation, which is based on the premise
that Article Il does not cover future systems.
"1986 Senate Hearings, supra note 3, at 168.
Reprinted in 1972 Armed Services Hearings,
supra note 19. at 81. Under the same subheading
("Future ABM Systems"), Rogers' letter also in-
cluded a discussion of the definitions in Article II
and the prohibitions on deployment in Article III
under this same subheading ("Future ABM Sys-
tems"), thereby indicating that such exotics were
covered by these provisions. This contradicts the
Reinterpretation's contention that exotics were
covered only by Agreed Statement D.
"1972 Foreign Relations Hearings, supra note 2,
at 6, 20. In his prepared statement, Rogers said,
"Perhaps of even greater importance as a Qualita-
tive limitation is that the parties have agreed that
future exotic types of ABM systems, i.e., systems
depending on such devices as lasers, may not be de-
ployed, even in permitted areas." Later, in response
to a Question by Senator Aiken about laser ABMs,
he said, "Under the agreement we provide that
exotic ABM systems may not be deployed and that
would include, of course, ABM system based on the
laser principle."
?' Id. at 20. In response to another Question by
Senator Aiken on Laser ABMs, Smith said:
? " we have covered this concern of yours in this
treaty by prohibiting the deployment of future
type technology. Unless the Treaty is amended,
both sides can only deploy launchers and intercep-
tors and radars. There are no inhibitions on mod-
ernizing this type of technology except that it
cannot be deployed in mobile land-based or space.
based or sea-based or air-based configurations. But
the laser concern was considered and both sides
have agreed that they will not deploy future type
ABM technology unless the treaty is amended.
"1972 Armed Services Hearings, supra note 19, at
287. Smith said: "The development and testing, as
well as deployment of sea, air, space-based, and
land-mobile ABM devices is prohibited. Of perhaps
even greater importance, the parties have agreed
that no future types of ABM systems based on dif-
ferent physical principles from present technology
can be deployed unless the treaty is amended."
npriacRified and Approved For Release 2013/01/23 : CIA-RDP89T00234R000100030025-7
m Declassified and Approved For
a, 4???(.11
"It at 171.
?? Id. at 222
''It at 295
"Id. at 306.
?? 118 Cong Rec. at 26.707 (1972). Senator Fong
said. "[The Treaty) (aillows research and develop-
ment on ABM systems to continue, but not the de-
pioyment of exotic or so-called future systems."
?? Id. at 26.693.
"1985 Senate Hearings. supra note 3. at 167.
"Foreign Broadcast Information Service. Oct.
19. 1985. at AA3.
"99 Marv. L. Rev at 1985 n.37.
" McNair. supra note 13. at 421.
?? Id at 427.
?' Id at 429.
Corbin on Contracts (C. Kaufman. ed.. Sung
1984). at 462
?? cHatr. supra note 13. at 431. Cf. Anglo-Irani-
an 0i/ Case (United Kingdom v. Iran) ICJ Reports
(1952) at 16-18 in which the International Court of
Justice noted the failure of the British Govern-
ment to object to Iranian domestic legislation is
evidence of Iran's obligations under a treaty with
respect to the British Government.
" 1972 Armed Sertnces Hea nniss, supra note 19. at
437. This exchange-which immediately preceded
the discussion in which the word laser was used
thirteen times-went as follows:
Senator GOLDWATER. I recognize what) have said
about the inability of the man in uniform and in-
ability of the man in civilian clothes to answer per-
tinent questions that 1 think we should have the
answers to. and I keep thinking of Senator Jack-
son's remarks here about the member of the Soviet
embassy. Is he here today?
Senator Joicissori. Yes.
Senator Gotows.TER. He is an expert in this
field-Senator Jackson said this gentleman knows
all the answers to the questions I air asking-I
can't understand why a US. Senator can't have the
same knowledge.
??L. Henktn. Foreign Affairs and the Constitu-
(ion, 130 (1972).
"The federaltst Papers, No. 75.
"Quoted in Henkin. supra note 64 at 130, n.?.
" See Henkin. supra note 64. at 131-36; Treaties
and Other International Agreements- The Role of
the Senate S. Rpt. No. 205. 98th Cong., 2d Sess. 30-
36 (1984) (Prepared for the Senate Foreign Rela-
tions Committee by the Congressional Research
Service).
"S. Apt. 205. supra. at 109-18.
?? Id. at 119-29.
?? Herat-in, supra note 64. at 167, re'.
TREATY BETWEEN TRE T-INITED STATES OF
AMERICA AND THE UNION OF SOVIET SOCIAL.
1ST REPUBLICS ON THE LIMITATION OF ANTI-
BALLISTIC MISSILE SYSTEMS
Signed at Moscow May 26, 1972.
Ratification advised by U.S. Senate
August 3, 1972.
Ratified by U.S. President September 30,
1972.
Proclaimed by U.S. President October 3,
1972.
Instruments of ratification exchanged Oc-
tober 3. 1972.
Entered into force October 3, 1972.
The United States of America and the
Union of Soviet Socialist Republics, herein-
after referred to as the Parties.
Proceeding from the premise that nuclear
war would have devastating consequences
for all mankind.
Considering that effective measures to
limit anti-ballistic missile systems would be
a substantial factor in curbing the race in
strategic offensive arms and would lead to a
decrease in the risk of outbreak of war in-
volving nuclear weapons.
Proceeding from the premise that the lim-
itation of anti-ballistic missile systems, as
well as certain agreed measures with respect
to the limitation of strategic offensive arms,
would contribute to the creation of more fa-
vorable conditions for further negotiations
on limiting strategic arms.
Mindful of their obligations under Article
VI of the Treaty on the Non-Proliferation
of Nuclear Weapons.
Declaring their intention to achieve at the
earliest possible date the cessation of the
Release 2013/01/23: CIA-RDP89T00234R000100030025-7
"IP
v...711.E.J.31'I%L. nr,k-kinw
nuclear arms race and to take effective
measures toward reductions in strategic
arms, nuclear disarmament, and general and
Complete disarmament.
Desiring to contribute to the relaxation of
International tension and the strengthening
of trust between States.
Have agreed as follows'
ARTICLE I
1. Each party undertakes to limit anti-bal-
listic missile (ABM) systems and to adopt
other measures in accordance with the pro-
visions of this Treaty.
2. Each Party undertakes not to deploy
ABM systems for a defense of the territory
of its country and not to provide a base for
such a defense, and not to deploy ABM sys-
tems for defense of an individual region
except as provided for in Article III of this
Treaty.
ARTICLE II
1. For the purpose of this Treaty an ABM
system is a system to counter strategic bal-
listic missiles or their elements in flight tra-
jectory, currently consisting of
(a) ABM interceptor missiles, which are
Interceptor missiles constructed and de-
ployed for an ABM role, or of a type tested
In an ABM mode;
(b) ABM launchers, which are launchers
constructed and deployed for launching
ABM interceptor missiles, and
(c) ABM radars, which are radars con-
structed and deployed for an ABM role, or
of a type tested in an ABM mode
2. The ABM system components listed in
paragraph 1 of this Article include those
which are:
(a) operational:
(b) under construction;
(c) undergoing testing:
(d) undergoing overhaul, repair or conver-
sion: or
(e) mothballed.
ARTICLE III
Each Party undertakes not to deploy
ABM systems or their components except
that:
(a) within one ABM system deployment
area having a radius of one hundred and
fifty kilometers and centered on the Party's
national capital. 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
within no more than six ABM radars com-
plexes. the area of each complex being cir-
cular and having a diameter of no more
than three kilometers: and
(b) within one ABM system deployment
area having a radius of one hundred and
fifty kilometers and containing ICBM silo
launchers, a Party may deploy: (1) no more
than one hundred ABM launchers and no
more than one hundred ABM interceptor
missiles at launch sites, (2) two large
phased-array ABM radars comparable in po-
tential to corresponding ABM radars oper-
ational or under construction on the date of
signature of the Treaty in an ABM system
deployment area containing ICBM silo
launchers, and (3) no more than eighteen
ABM radars each having a potential less
than the potential of the smaller of the
above-mentioned two large phased-array
ABM radars.
ARTICLE IV
The limitations provided for in Article III
shall not apply to ABM systems or their
components used for development of test-
ing, and located within current or addition-
ally agreed test ranges. Each Party may
have no more than a total of fifteen ABM
launchers at test ranges.
ARTICLE V
1. 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.
2. Each Party undertakes not to develop,
test, or deploy ABM launchers for launch-
ing more than one ABM interceptor missile
at a time from each launcher, not to modify
deployed launchers to provide them with
such a capability. not to develop, test, or
deploy automatic or semi-automatic or
other similar systems for rapid reload of
ABM launchers.
S 2983
ARTICLE VI
To enhance assurance of the effectiveness
of the limitations on ABM systems and
their components provided by the Treaty.
each Party undertakes:
(a) not to give missiles, launchers, or
radars, other than ABM interceptor mis-
siles. ABM launchers, or ABM radars, capa-
bilities to counter strategic ballistic missiles
or their elements in flight trajactory, and
not to test them in an ABM mode. and
(b) not to deploy in the future radars for
early warning of strategic ballistic missile
attack except at locations along the periph-
ery of its national territory and oriented
outward
ARTICLE VII
Subject to the provisions of this Treaty,
modernization and replacement of ABM sys-
tems or their components may be carried
Out.
ARTICLE VIII
ABM systems or their components in
excess of the numbers or outside the areas
specified in this Treaty, as well as ABM sys-
tems or their components prohibited by this
Treaty, shall be destroyed or dismantled
under agreed procedures within the shortest
possible agreed period of time.
ARTICLE IX
To assure the viability and effectiveness
of this Treaty, each Party undertakes not to
transfer to other States, and not to deploy
outside its national territory, ABM systems
or their components limited by this Treaty.
ARTICLE X
Each Party undertakes not to assume any
International obligations which would con-
flict with this Treaty.
ARTICLE XI
The Parties undertake to continue active
negotiations for limitations on strategic of-
fensive arms.
ARTICLE XII
1. For the purpose of providing assurance
of compliance with the provisions of this
Treaty, each Party shall use national tech-
nical means of verification at its disposal in
a manner consistent with generally recog-
nized principles of international law.
2. Each Party undertakes not to interfere
with the national technical means of verifi-
cation of the other Party operating in ac-
cordance with paragraph 1 of this Article.
3. Each Party undertakes not to use delib-
erate concealment measures which impede
verification by national technical means of
compliance with the provisions of this
Treaty. This obligation shall not require
changes in current construction, assembly,
conversion, or overhaul practices.
ARTICLE XIII
1. To promote the objectives and imple-
mentation of the provisions of this Treaty,
the Parties shall establish promptly a
Standing Consultative Commission, within
the framework of which they will:
(a) consider questions concerning compli-
ance with the obligations assumed and re-
Declassified and Approved For Release 2013/01/23: CIA-RDP89T002341R000100030025-7,..
S 2989
Declassified and Approved For Release 2013/01/23 CIA-RDP89T00234R000100030025-7
..__.h 11Pr ,
198"
- writcn may oe co d
ambiguous,
(b) provide on a voluntary basis such in-
formation as either Party considers neces-
sary to assure confidence in compliance
with the obligations assumed
(c) consider questions involving unintend-
ed interference with national technical
means of verification.
(d) consider possible changes in the strate-
gic situation which have a bearing on the
provisions of this Treaty.
(e) agree upon procedures and dates for
destruction or dismantling of ABM systems
or their components in cases provided for by
the provisions of this Treaty.
(I) consider, as appropriate, possible pro-
posals for further increasing the viability of
the Treaty, including proposals for amend-
ments in accordance with the provisions of
this Treaty.
(a) consider, as appropriate, proposals for
further measures amend at limiting strate-
gic arms.
2. The Parties through consultation shall
establish and may amend as appropriate.
Regulations for the Standing Consultative
Commission governing procedures, composi-
tion and other relevant matters.
ARTICLE XIV
1. Each Party may propose amendments
to this Treaty. Agreed amendments shall
enter into force in accordance with the pro-
cedures governing the entry into force of
this Treaty.
2. Five years after entry into force of this
Treaty. and at five-year Intervals thereafter,
the Parties shall together conduct a review
of this Treaty.
ARTICLE XV
1. This Treaty shall be of unlimited dura-
tion.
2. Each Party shall, in exercising its na-
tional sovereignty, have the right to with-
dray from this Treaty if it decides that ex-
traordinary events related to the subject
natter of this Treaty have jeopardized its
supreme interests. It shall give notice of its
decision to the other Party six months prior
to withdrawal from the Treaty. Such notice
shall include a statement of the extraordi-
nary events the notifying Party regards as
having jeopardized its supreme interests.
ARTICLE XVI
I. This Treaty shall be subject to ratifica-
tion in accordance with the constitutional
procedures of each Party. The Treaty shall
enter into force on the day of the exchange
of instruments of ratification.
2. This Treaty shall be registered pursu-
ant to Article 102 of the Charter of the
United Nations.
DONE at Moscow on May 26, 1972, in two
copies, each in the English and Russian lan-
guages. both texts being equally authentic.
FOR THE UNITED STATT.S OF
AMERICA.
RICHARD NIXON,
President of the
United States of
America.
FOR THE UNION OF SOVErI
SOCIALIST REPUBLICS,
L. I. Barzissrav,
General Secretary of
the Central Com-
mittee of the
CPSU.
AGREED STATEMENTS, COMMON URDERSTAN
DIM AND UNILATERAL STATEMENTS REGARD-
ING THE TRUTT BETWEEN THE UNITED
STATES 01/P AMERICA AND THE UNION or
Soarer Somata:. Rtrusucs on sair Lima
TATION OF ANTI-BALLISTIC MISSILL's
I. AGREED STATEMENTS
The document set forth below was agreed
upon and initialed by the Heads of the Dele-
gations on May 26, 1972 (letter designations
added):
Agreed statements regarding the treaty
between the United States of America and
the Union of Soviet Socialist Republics on
the limitation of Anti-Ballistic Missile Sys-
tems:
IA]
The Parties understand that in addition to
the ABM radars which may be deployed in
accordance with subparagraph (a) of Article
III of the Treaty, those non-phased-array
ABM radars operational on the date of sig-
nature of the Treaty within the ABM
system deployment area for defense of the
national capital may be retained.
[5]
The Parties understand that the potential
(the product of mean emitted power in
watts and antenna area in square meters) of
the smaller of the two large phased-array
ABM radars referred to in subparagraph (b)
of Article III of the Treaty is considered for
purposes of the Treaty to be three million.
ICI
The Parties understand that the center of
the ABM system deployment area centered
on the national capital and the center of
the ABM system deployment area contain-
ing ICBM silo launchers for each Party
shall be separated by no less than thirteen
hundred kilometers.
ID)
In order to insure fulfillment of the obli-
gation not to deploy ABM systems and their
components except as provided in Article III
of the Treaty. the Parties agree that in the
event ABM systems based on other physical
principles and including components capa-
ble of substituting for ABM interceptor mis-
siles. ABM launchers. or ABM radars are
created in the future, specific limitations on
such systems and their components would
be subject to discussion in accordance with
Article XIII and agreement in accordance
with Article XIV of the Treaty.
-[E)
The Parties understand that Article V of
the Treaty includes obligations not to devel-
op, test or deploy ABM interceptor missiles
for the delivery by each ABM interceptor
missile of more than one independently
guided warhead.
[F]
The Parties agree not to deploy phased-
array radars having a potential (the product
of mean emitted power in watts and anten-
na area in square meters) exceeding three
million, except as provided for in Articles
III. IV and VI of the Treaty, or except for
the purposes of tracking objects in outer
space or for use as national technical means
of verification.
IG)
The Parties understand that Article IX of
the Treaty includes the obligation of the
U.S. and the USSR not to provide to other
States technical descriptions or blue prints
specially worked out for the construction of
ABM systems and their components limited
by the Treaty.
the following matters was reached during
the negotiations.
Common understanding of the Parties on
3. COMMON UNDERSTANDINGS
A. Location of ICBM Defenses
The US. Delegation made the following
statement on May 26.1972:
Article III of the ABM Treaty provides for
each side one ABM system deployment area
centered on its national capital and one
ABM system deployment area containing
ICBM silo launchers The two sides have
center of
registered agreement on the following state-
ment.
-T
Parties system
sunderstand that the
o
tem deployment area
centered on the national capital and the
center of the ABM system deployment area
containing ICBM silo launchers for each
Party shall be separated by no less than
thirteen hundred kilometers." In this con-
nection. the U.S. side notes that its ABM
system deployment area for defense of
ICBM silo launchers. located west of the
Mississippi River, will be centered in the
Grand Forks ICBM silo launcher deploy-
ment area (See Agreed Statement [C].i
B. ABM Test Ranges
The U.S. Delegation made the following
statement on April 26, 1972:
Article IV of the ABM Treaty provides
that "the limitations provided for in Article
III shall not apply to ABM systems or their
components used for development or test-
ing, and located within current or addition-
ally agreed test ranges." We believe it would
be useful to assure that there is no misun-
derstanding as to current ABM test ranges.
It is our understanding that ABM test
ranges encompass the area within which
ABM components are located for test pur-
poses. The current U.S. ABM test ranges are
at White Sands, New Mexico. and at Kwaja-
lein Atoll, and the current Soviet ABM test
range is near Sary Shagan in Karathstan.
We consider that non-phased array radar of
types used for range safety or instrumenta-
tion purposes may be located outside ABM
test ranges. We interpret the reference in
Article IV to "additionally agreed to ranges
to mean that ABM components will not be
located at any other test ranges without
Prior agreement between our Governments
ranges.
testhere will be such additional ABM test
On May 5, 1972, the Soviet Delegation
stated that there was a common under-
standing on what ABM test ranges were.
that the use of the types of non-ABM
radars for range safety or instrumentation
was not limited under the Treaty, that the
reference in Article IV to "additionally
agreed" test ranges was sufficiently clear,
and that national means permitted identify-
ing current test ranges.
C. Mobile ABM Systems
On January 29, 1972, the U.S. Delegation
made the following statement:
Article WI) of the Joint Draft Text of the
ABM Treaty includes an undertaking not to
develop, test, or deploy mobile land-based
AMB systems and their components. On
May 5, 1971, the US. side indicated that, in
Its view, a prohibition on deployment of
mobile ABM systems and components would
rule out the deployment of ABM launchers
and radars which were not permanent fixed
types. At that time, we asked for the Soviet
view of this interpretation. Does the Soviet
side agree with the U.S. side's interpretation
put forward on May 5, 1917.
On April 13, 1972, the Soviet Delegation
said there is a general common understand-
Lng on this matter.
naalaceifiari and Approved For Release 2013/01/23 CIA-RDP89T00234R000100030025-7
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7
March. 11, 1Uei7 lipNGRESSIONAL RECORD ? SENW S 2985
D. Standing Consultative Commission
Ambassador Smith made the following
statement on May 22, 1972:
The United States proposes that the sides
agree that, with regard to initial implemen-
tation of the ABM Treaty's Article XIII on
the Standing Consultative Commission
(SCC) and of the consultation Articles to
the interim Agreement on offensive arms
and the Accidents Agreement,' agreement
establishing the SCC will be worked out
early in the follow-on SALT negotiations;
until that is completed. The following ar-
rangements will prevail when; SALT is in
session, any consultation desired by either
side under these Article can be carried out
by the two SALT Delegations; when SALT
Is not in session, ad hoc arrangements for
any desired consultations under these Arti-
cles may be made through diplomatic chan-
nels.
Minister Semenov replied that, on an ad
referendum basis, he could agree that the
U.S. statement corresponded to the Soviet
understanding.
E. Standstill
On May 6, 1972. Minister Semenov made
the following statement:
In an effort to accommodate the wishes of
the U.S. side, the Soviet Delegation is pre-
pared to proceed on the basis that the two
sides will in fact observe the obligations of
both the interim Agreement and the ABM
Treaty beginning from the date of signature
of these two documents.
In reply, the US. Delegation made the
following statement on May 20, 1972.
ARMS CONTROL AND DISARMAMENT
AGREEMENTS
The U.S. agrees in principle with the
Soviet statement made on May 6 concerning
observance of obligations beginning from
date of signature but we would like to make
clear our understanding that this means
that pending ratification and acceptance,
neither side would take any action prohibit-
ed by the agreements after they had en-
tered in force. This understanding would
continue to apply in the absence of notifica-
tion by either signatory of its intention not
to proceed with ratification or approval.
The Soviet Delegation indicated agree-
ment with the U.S. statement.
3. UNILATERAL STATEMENTS
The following noteworthy unilateral
statements were made during the negotia-
tions by the United States Delegations:
A. Withdrawal from the ABM Treaty
On May 9, 1972. Ambassador Smith made
the following statement:
The U.S. Delegation has streessed the im-
portance the U.S. Government attaches to
achieving agreement on more complete limi-
tations on strategic offensive arms, follow-
ing agreement on an ABM Treaty and on an
Interim Agreement on certain measures
with respect to the limitation of strategic
offensive arms. The ? ? ? Delegation be-
lieves that an objective of the follow-on ne-
gotiations should ? ? ? constrain and reduce
on a long-term basis threats to the surviv-
ability of ? ? ? respective strategic retaliato-
ry forces. The USSR Delegation has also in-
dicated that the objectives of SALT would
remain unfulfilled without the achievement
of an agreement providing for more com-
plete limitation on strategic offensive arms.
Both sides recognize that the initial agree-
ments would be steps toward the achieve-
ment of more complete limitations on stra-
See Article 7 of Agreement to Reduce the Risk
of Outbreak of Nuclear War Between the United
States of America and the Union of Soviet Socialist
Republics, signed Sept. 30, 1971.
tegic arms. If an agreement providing for
more complete strategic offensive arms limi-
tations were not achieved within five years.
U.S. supreme interests could be jeopardized.
Should that occur, it would constitute a
basis for withdrawal from the ABM Treaty.
The U.S. does not wish to see such a situa-
tion occur, nor do we believe that the USSR
does. It is because we wish to prevent such a
situation that we emphasize the importance
the U.S. Government attaches to achieve-
ment of more complete limitations on stra-
tegic offensive arms. The U.S. Executive will
Inform the Congress, in connection with
Congressional consideration of the ABM
Treaty and the interim Agreement of this
statement of the U.S. position.
B. Tested in ABM Mode
On April 7, 1972, the US. Delegation
made the following statement:
Article of the Joint Text Draft uses the
term "tested in an ABM mode" indefining
ABM components and Article VI includes
certain obligations concerning such testing.
We believe that the sides should have a
common understanding of this phrase.
First, we would note that the testing provi-
sions of the ABM Treaty are intended to
apply to testing which occurs after the date
of signature of the Treaty, and not to any
testing which may have occurred in the
past. Next, we would amplify the remarks
we have made on this subject during the
previous Helsinki phase by setting forth the
objectives which govern the U.S. view on
the subject, namely, while prohibiting test-
ing of non-ABM components for ABM pur-
poses: not to prevent testing of ABM compo-
nents, and not to prevent testing of non-
ABM components ? ? ? non-ABM purposes.
To clarify our interpretation of "tested in
an ABM mode" we note that we would con-
sider a launcher, missile or radar to be
"tested in an ABM mode" if, for example,
any of the following events occur (1) a
launcher is used to launch an ABM inter-
ceptor missile, (2) an interceptor missile is
flight tested against a target vehicle which
has a flight trajectory with characteristics
of a strategic ballistic missile flight trajecto-
ry, or is flight tested in conjunction with
the test of an ABM interceptor missile or an
ABM radar at the same test range, or is
flight tested to an altitude inconsistent with
interception of targets against which air de-
fenses are deployed. (3) a radar makes meas-
urements on a cooperative target vehicle of
the kind referred to in item (2) above during
the reentry portion of its trajectory or
makes measurements in conjunction with
the test of an ABM interceptor missile or an
ABM radar at the same test range. Radars
used for purposes such as range safety or in-
strumentation would be exempt from appli-
cation of these criteria.
C. No-Transfer Article of ABM Treaty
On April 18, 1972, the U.S. Delegation
made the following statement:
In regard to this Article [IX), I have a
brief and I believe self-explanatory state-
ment to make. The U.S. side wishes to make
clear that the provisions of this Article do
not set a precedent for whatever provision
may be considered for a Treaty on Limiting
Strategic Offensive Arms. The question of
transfer of strategic offensive arms is a far
more complex issue, which may require a
different solution.
D. No Increase in Defense of Early Warming
Radars
On July 28, 1970, the U.S. Delegation
made the following statement:
Since Hen House radars [Soviet ballistic
missile early warning radars) can detect and
track ballistic missile warheads at great dis-
tances, they have a significant ABM poten-
tial. Accordingly, the U.S. would regard any
Increase in the defenses of such radars by
surface-to-air missiles as inconsistent with
an agreement.
Mr. NUNN. Mr. President, I have a
letter from Judge Sofaer on the sub-
ject I was addressing. In that letter,
without trying to quote it directly be-
cause I do not have it with me, he
mentioned he is going to go back
through this Senate record very care-
fully and thoroughly. He also indi-
cates that his prime consideration
when he was doing his original re-
search was on the negotiating record
of the treaties rather than the Senate
record.
So I ask unanimous consent that
letter, by way of explanation, from
Judge Sofaer be inserted in the
RECORD.
There being no objection, the letter
was ordered to be printed in the
RECORD, as follows:
U.S. DEPARTMENT OF STATE,
THE LEGAL ADVISER,
Washington, DC, March 9, 1987.
Hon. SAM NuNN,
U.S. Senate, Washington, DC.
DEAR SENATOR NuNN: As you know, the
President has directed that further work be
done on the remaining issues associated
with the interpretation of the ABM Treaty.
This additional work will focus on the ratifi-
cation process, and on subsequent practice
of the parties; April 30 is the target for com-
pletion.
The points made on the ratification
record of the Treaty that were contained in
our October 1985 analysis of the negotiating
record did not provide a complete portrayal
of the ratification proceedings with respect
to this issue. I concentrated during that
period on the Treaty language and negotiat-
ing history, and I did not review this materi-
al personally. The August 1986 study pro-
vided to the Senate was not as comprehen-
sive as the current project directed by the
President. (It was never meant to be: the
August 1986 study covered primarily the
Treaty itself and its negotiating record.)
The study is more complete, but still fails to
cover the subject in full depth. This is why,
among other things, the President directed
that a thorough study of the ratification
record?and of subsequent practice?be un-
dertaken. I will personally review this mate-
rial and satisfy myself that the analysis we
present is complete.
I would note in this connection that my
August 1986 classified memoranduni to Sec-
retary Shultz did not include various state-
ments in the ratification record which I ac-
knowledged supported the restrictive inter-
pretation, and that these statements may
have a bearing on the President's obliga-
tions to the Senate. The current study will
fully reflect these and other parts of the
ratification record. I should also note, how-
ever, that the U.S. internal ratification
process cannot by itself create international
obligations under the Treaty; the Soviet
Union does not hold itself to review and be
responsible for responding to statements
made during U.S. internal proceedings, any
more than we held ourselves responsible for
responding to Soviet internal proceedings.
I would welcome the opportunity to dis-
cuss the negotiating record with you, or any
other issue. Our position on the negotiating
record is not based on artificial distinctions,
but rests on an objective appraisal of Soviet
behavior during the negotiations. Nor do we
agree that our reading of the record under-
Declassified and Approved For Release 2013/01/23 : CIA-RDP89T00234R000100030025-7
C 900C
Declassified a Rse 201/1/2CA-RDP89T00234R000100030025-7
Fnd Approved orelea 303 M
arch 11, /987
lir I t
cuts the basic purposes of the TreffiLven ready by Friday. It would be my inten- proposes legislation to improve 'U.S.
If the parties were allowed to "crag "only
fixed. land-based devices by Agreed State-
ment D, such devices could potentially pro-
vide a territorial defense, if deployed. The
parties relied on the Treaty's deployment
provisions to block any deployment action
Inconsistent with the Treaty, unless the par-
ties agreed, after consultation, to permit
such deployments.
In connection with your analysis of the
negotiating record, we have nothing new to
add, though we are continuing to search for
relevant materials. We believe, however,
that in evaluating that record you should
keep in mind the standard which the Sovi-
ets would apply in deciding whether they
are bound to the -narrow" version of the
Treaty. The Soviets have applied a strict
standard in the past in connection with U.S.
claims that they were bound to a given in-
terpretation of an arms control agreement.
We are collecting materials relevant to this
question. Meanwhile, however, you no doubt
recall the Soviet position on our unilateral
statement on what constituted a "heavy"
missile in the SALT I Interim Agreement.
They also led us to believe they had no test
range at Kamchatka, making clear the need
for us to pin down any obligation. I will
shortly provide you with a more detailed de-
scription of these instances of Soviet negoti-
ating conduct for your appraisal.
If You agree, Mr. Naze would like to join
me in our discussion so that he could con-
tribute his judgment on the policy issues in-
volved.
Sincerely your,
ABRAHAM D. SOFAER.
Mr. NUNN. Mr. President, I thank
the Senator from West Virginia for ar-
ranging this rather lengthy time. I
think that this matter requires
lengthy explanation. I know it is un-
usual, but I appreciate the time the
Senator has accorded me this after-
noon.
I also want to say that the Senator
from West Virginia has done his own
analysis in this area. I have not dis-
cussed with him in great detail his
conclusions. I am not sure if .we are on
par on everything, but I will be look-
ing forward with great anticipation
hearing the Senator from West Virgin-
ia's views when he does address this
subject.
(During Mr. Nurnkes remarks, Mr.
HARKIN assumed the chair.)
Mr. BYRD. Mr. President, I thank
the distinguished Senator from Geor-
gia. He has approached this important
matter, as he approaches all such sub-
jects, very studiously and, in a very
scholarly presentation, has stated
clearly today his analysis of the
matter. As I understand it, he will be
speaking again on the Senate floor on
the subject. May I ask, is it his inten-
tion to speak again tomorrow and/or
on Friday if the Senate is in session
both days?
Mr. NUNN. Mr. President, I will
have the portion on the subsequent
behavior of the two parties, that is the
United States and the Soviet Union
subsequent to the treaty being rati-
fied, I would have that prepared and
ready by tomorrow. If the Senate is in
session, it would be my intention to
present it then. I hope to have the
analysis of the negotiating record
tion to present those at that time,
hopefully in better voice.
Mr. BYRD. Mr. President, the Sena-
tor has spoken under difficult condi-
tions today, with his case of laryngitis.
The Senate will be in tomorrow, if
the Senator wishes to speak on the
subject tomorrow.
Mr. NUNN. I would like to get some
time tomorrow that is appropriate and
convenient to the leadership.
Mr. BYRD. Very well. That will be
arranged.
I compliment the able Senator on
the presentation of his analysis on the
subject. He has been going into the
historic record, the negotiating record,
the record of the Senate debates, the
understanding of the Senate, the un-
derstanding of committees in the
Senate that conducts hearings. His
analysis should be read and carefully
considered by the administration, by
his colleagues here in the Senate, by
the press, by the people. He renders a
great service. When the Senator from
Georgia speaks on a matter that in-
volves our national defense, people lis-
ten. I listen. And I compliment him,
and, more than that, I thank him for
the work he has been doing. It takes a
lot of his time.
He has been working laboriously at
this task for many, many weeks. And I
know that Senators recognize that
Senator Numi has done more work in
this area and has given effort to it
than has anybody else in the body.
That is why we all listen when he
speaks.
Mr. FELL addressed the Chair.
The PRESIDING OFFICER. The
Senator from Rhode Island.
Mr. FELL. Mr. President, I regret
that I was not here when the Senator
from Georgia was giving his speech. I
was presiding at a meeting on foreign
relations. But I look forward to read-
ing it. I rise merely to pay my respect
to him, and my regard for him is of
the highest order. I know the contri-
butions he made on the floor this
morning will be read by many of us. It
will have an effect like a pebble falling
Into a pool of water where the ripples
go out.
I wish him well. I hope his voice re-
covers for his appearance before our
committee this afternoon for about 20
minutes.
Mr. NUNN. I will be there.
I thank the Senator from Rhode
Island. I thank the Senator from West
Virginia.
Mr. GRASSLEY
Chair.
The PRESIDING
Senator from Iowa.
addressed the
014 ICER. The
TRADE CROSSROADS
Mr. GRASSLEY. Mr. President, the
100th Congress is now beginning to
formulate the direction of trade legis-
lation In the shadow of mounting
trade and budgetary deficits. Coupled
with this action, the a.d.ministration
competitiveness.
Some will interpret the present
mood that is going on in the Con-
gress?and maybe the country as a
whole?as protectionism on the rise in
the United States. Yet many individ-
uals?including myself?see it more as
a move to open foreign markets now
closed, and beef up trade laws not cur-
rently being enforced. Mired in all of
this, however, loomed the real poten-
tial for a trade war between the
United States and the European
Common Market. This trade war was
only recently sidestepped when a 4-
year agreement was reached at the
last moment.
As might be expected, this agree-
ment drew mixed reviews. I happen to
think it was not a very good agree-
ment. The administration trumpeted
it as a victory for the President's
tough new negotiating posture. The
corn growers said the agreement is
more evidence that the Reagan admin-
istration has no backbone when it
comes to trade negotiations. The Farm
Bureau said the provisions were disap-
pointing to feed grain producers, but
may be the best deal possible at the
particular time. As for others, they
feel the battle merely shifted to a new
front?and that could be the European
fight against importation of our soy-
beans.
Most trade groups are hoping for
progress in the new round of interna-
tional trade talks scheduled in
Geneva. Our goal will be to try and
obtain concessions from Europe to
reduce its huge export subsidies. Yet,
our posture in this recent agreement
may have already set the tone for
some difficult discussions in the weeks
ahead.
Most alarming to me is that, in less
than 10 years, Europe has gone from
one of the United States' biggest grain
buyers to its most aggressive export
competitor. How did they do all this?
Did they have some kind of secret
weapon? You bet! In one word it is
called subsidies.
The time has come for us to get
moving on this issue, within the
framework of the GATT, as well as in
the House and Senate. We must move
now if we are to achieve any meaning-
ful results in the attempt to halt our
eroding trade posture.
The decline in agricultural exports
have significantly cut into what was
once a healthy agricultural trade sur-
plus. Exports exceeded imports annu-
ally by over $10 billion between 1974
and 1975?and in some years, by more
than twice that amount. Now the
United States has been running an
annual trade deficit in processes food
products since 1983.
This decline has had a number of se-
rious repercussions throughout the
U.S. economy. Farmers look to the
export market to take the production
from more than one-third of their
cropland. Falling exports have result-
nnri nnrnved For Release 2013/01/23: CIA-RDP89T00234R000100030025-7