President Bill Clinton and newly elected Russian President Vladimir Putin, who has served as President since Boris Yeltsin resigned on December 31, 1999, are engaging in informal diplomacy on missile defense, ostensibly to amend the 1972 Anti-Ballistic Missile (ABM) Treaty.1 But the real result of this diplomacy will be to revive that treaty and, more important, permanently hobble the ability of the United States to defend itself against ballistic missiles. Limiting missile defense should be seen as a threat to national security. If the President succeeds, America quite possibly will be condemned to remain permanently vulnerable to missile attack.
The ABM Treaty barred the United States from deploying a missile defense system to protect its national territory. It ceased to be binding with the collapse of the Soviet Union in 1991.2 The Administration nonetheless continues to observe its restrictions unilaterally and is trying to revive it by substituting Russia and three other former Soviet states as negotiating partners. Because of the President's determination to preserve this outdated relic of the Cold War, the United States today--faced with an the escalating missile threat--is unable to defend itself against a single ballistic missile.
As if that were not bad enough, the Administration also has not been forthright with the public about the nature of its ongoing diplomacy with Russia. It describes it merely as a process "to discuss changes in the ABM Treaty" to allow the deployment of a national missile defense system.3 If the Administration were genuinely serious about missile defense, it would first acknowledge that the ABM Treaty is no longer legally binding and then proceed to deploy the most effective system permitted by the available technology while continuing to pursue better technologies. Instead, it is working on a series of agreements with Russia that will resurrect the ABM Treaty and, by modifying it slightly, allow the United States to deploy a very limited but ultimately ineffective system.
The Senate should stop this charade. Given its constitutional role in the ratification of treaties, the Senate needs to voice its objections to the Administration's informal diplomacy with Russia. Otherwise, it will find itself facing a situation similar to the debate over the flawed Comprehensive Test Ban Treaty (CTBT), which it was forced to reject. (Significantly, the Administration failed to seek the Senate's advice during negotiations on that treaty as well.) The Senate should make it clear that it will object to any diplomatic procedure that circumvents its constitutional role. It also should recommend that the Administration revive the Defense and Space Talks as an appropriate forum for future discussions with Russia on missile defense.
Shortly after President Clinton took office, the Administration began efforts to preserve the ABM Treaty, despite the collapse in 1991 of America's only partner in this treaty, the Soviet Union.4 It has taken premature and inappropriate diplomatic steps to achieve this goal. One of its more aggressive steps occurred on September 26, 1997, when a U.S. delegation led by Secretary of State Madeleine Albright signed three agreements in New York that relate to the ABM Treaty and require the Senate's approval prior to ratification and implementation.5
The Administration has acknowledged that it must transmit these agreements to the Senate before they take effect, but it has yet to do so. Worse, despite the lapse of the ABM Treaty in 1991, the Administration insists on honoring its restrictions on missile defenses. The 1997 agreements with four former Soviet states--Belarus, Kazakhstan, Russia, and Ukraine--are an attempt to implement a new treaty that would impose ABM Treaty-style restrictions on the U.S. military and retard progress toward the deployment of an effective missile defense system for America.
The most important of the 1997 agreements is a Memorandum of Understanding (MOU) that multilateralizes the old ABM Treaty between the United States and the Soviet Union to five states. If the Senate approves it, this agreement not only would revive the ABM Treaty's restrictions on missile defense, but also would serve as the legal foundation for the other agreements. If the Senate were to reject this agreement, the Administration's efforts to impose permanent ABM Treaty-style restrictions on the U.S. missile defense effort would fail, and there would be no need to consider the other two agreements.
The second 1997 agreement addresses the difference between defenses against long-range (strategic) missiles, which had been subject to ABM Treaty restrictions, and shorter-range (theater) missiles, which were not subject to ABM Treaty restrictions. Theater defenses are needed to protect U.S. and allied troops in battle. The ABM Treaty (and by extension the MOU) had failed to define "strategic" or "theater" defenses.
The second agreement is known as a demarcation agreement because it establishes a dividing line between systems that are subject to MOU restrictions and those that are not. It took the form of an "agreed statement," which means that the MOU partners would apply its restrictions in accordance with this second agreement. This demarcation agreement states that theater defense systems with a maximum speed of less than 3 kilometers per second are not subject to ABM-style restrictions under the MOU as long as two conditions are met:
The third agreement is another agreed statement on demarcation. It concerns interceptor missiles for theater defense with speeds of more than 3 kilometers per second. These faster interceptors would not automatically be assumed to be exempt from the MOU's ABM Treaty-style restrictions. Rather, the states would be left to enforce the MOU restrictions so that their non-ABM systems would not be equipped with ABM capabilities. Both agreed statements would enter into force with the MOU.
This last agreement and a unilateral statement issued by the U.S. delegation at the signing ceremony in New York impose a wide array of restrictions on faster systems.6 Such systems may not be tested against target missiles with speeds in excess of 5 kilometers per second or ranges of more than 3,500 kilometers; and they may not be deployed in space without being seen as MOU-limited ABM systems.
They may neither pose a "realistic threat" to strategic nuclear forces nor be tested to give theater defense systems such capability.7 This would ensure that theater defenses could not counter the longer-range missiles capable of striking U.S. territory.
They may not be deployed for possible use against the theater missiles other parties have deployed. For example, the United States would be barred from deploying missiles to defend against the Russian SS-21 Scarab short-range missile.
Their number and geographic scope of deployment would be limited.8
They may not have interceptor missiles with speeds in excess of 5.5 kilometers per second (for land-based and air-based systems) and 4.5 kilometers per second (for sea-based systems). This reduces their effectiveness as theater defense interceptors.
The Administration recognized early last year that because its 1997 agreements with Russia, Belarus, Kazakhstan, and Ukraine would prevent the United States from meeting the escalating missile threat, they would not win the necessary support in the Senate. It therefore began to talk about the need to sign a new missile defense agreement with Russia that would permit a missile defense system to be deployed.
agreed that they will resume discussions on START III and on the ABM Treaty in the fall. Now, this is very significant because for the first time the Russians have agreed to discuss changes in the ABM Treaty that may be necessitated by a national missile defense system were we to decide to deploy one.9
Since then, the Administration has frequently mentioned its ongoing efforts to amend the ABM Treaty in order to field a national missile defense system despite ABM Treaty-related limitations contained in its MOU and demarcation agreements. After Yeltsin resigned, the President began discussions with Acting President Putin; they have even discussed a possible summit on the matter.10
Possible Provisions in a New Agreement. Although formal negotiations on the possible new agreement have not taken place, it is not difficult to discern what the Administration hopes to include in it. Recent testimony by the head of the Ballistic Missile Defense Organization before two subcommittees of the House Armed Services Committee11 indicates that the Administration most likely will seek the following provisions:
The United States would be permitted to field a missile defense system to protect its territory.
This provision directly contradicts the intent and the terms of the ABM Treaty as it would be revived by the 1997 MOU.
A U.S. missile defense system would be permitted only at a single site that contained up to 100 interceptors for territorial defense.
The ABM Treaty, if it were in force, would allow 100 interceptors at only one site, located either in North Dakota or in Washington, D.C. Article I of the ABM Treaty, however, explicitly prohibited the United States from giving this site interceptors that could provide "a defense of the territory of its country." The effect of the 1997 agreements, by reviving the ABM Treaty as amended in 1974, would be to limit the United States to a single site of between 20 and 100 interceptors. While this new provision would allow a territorial defense, as a practical matter, it might still prevent the United States from defending all of its territory against the full range of missile threats. For example, missiles could be launched from ships off the U.S. coast that this system would be unable to counter.
The United States would be allowed to change its one treaty-designated long-range missile defense site from North Dakota to Alaska.
The ABM Treaty as modified by the 1974 Protocol allows only a single site of interceptors that may be deployed in North Dakota as the site designated by the United States under the treaty. The 1997 agreements would continue the ABM Treaty provision that allows the United States to locate its sole long-range missile defense site in North Dakota. This new agreement, however, would permit the United States to change this prior restriction from North Dakota to Alaska.
The use of external sensors, particularly satellite sensors, would be allowed only indirectly for missile defense.
The ABM Treaty is ambiguous regarding the use of sensor satellites in ABM battle management. Many critics of missile defense interpret sensor satellites as substitutes for ABM radar, and therefore prohibited by Article V of the ABM Treaty if it were still in force. Because the Administration has not clarified whether the 1997 agreements would prohibit the use of satellite sensors in missile defense, this new provision would remove any doubt. It explicitly would permit the use of external sensors on satellites for national missile defense as long as the satellites are limited to an adjunct role--that is, they are deployed primarily for a purpose that could contribute only indirectly to national missile defense. As such, the sensors could detect a launch and communicate that information to a ground station; they could not collect targeting information on launched ballistic missiles and provide that information to interceptors.
Shortcoming #1: It would not allow the
United States to deploy a missile defense system that would protect
all U.S. territory.
A single-site system--whether located in North Dakota, Alaska, or Washington, D.C.--is simply too limited to provide an effective territorial defense against ballistic missiles. It could not, for example, defend against every missile launched from boats in international waters off the coast of the United States.
Shortcoming #2: It would not allow
theater missile defense systems to be upgraded to enable them to
defend U.S. territory.
The Administration's current diplomacy is focused on obtaining relief from Article I and Article III of the revived ABM Treaty if the Senate were to ratify the MOU. Article VI, which explicitly prohibits even the testing of upgraded theater missile defenses to counter long-range missiles, would be left intact. As a result, the Administration's ABM Treaty-related agreements would prohibit the United States from deploying the most cost-effective limited national missile defense system available in the near term--a sea-based system. This system, based on upgrading the U.S. Navy's Upper Tier theater defense system, would cost only some $3 billion to deploy.
Shortcoming #3: All defenses except
fixed ground-based ABM systems would be prohibited.
The Administration's agreements would bar the Navy Upper Tier's sea-based defenses from being deployed, as well as any spaced-based defenses. Both sea-based and space-based missile defenses are needed to create a truly effective defensive capability. Article V of the ABM Treaty would impose these prohibitions on all but fixed ground-based interceptors if the MOU is ratified. The current diplomacy would not change the prohibitions in Article V.
Shortcoming #4: It would bar the
testing and deployment of defenses to protect U.S. troops and U.S.
allies against faster missiles.
This new agreement would let stand previously negotiated restrictions that limit long- and short-range missile defenses. These restrictions in the New York agreements would leave U.S. forward-deployed forces such as those in Guam and Japan permanently vulnerable to the kind of missile that North Korea launched in August 1998.12 The reason: The two agreed statements signed in 1997 explicitly prohibit the testing of theater defense systems against target missiles that fly more than 5 kilometers per second and that are similar to those threatening U.S. troops and allies today.
Shortcoming #5: The direct use of
information obtained by sensor satellites for missile defense would
The Administration is unlikely to seek a provision to permit external sensors, particularly satellite sensors, which collect targeting data on enemy ballistic missiles in flight and provide those data to interceptors. A "sensors go free" provision would allow U.S. satellites to participate directly in ABM battle management. The prohibition on such a direct role for satellites and other external sensors degrades the capability of interceptors to counter ballistic missiles. Sea-based interceptors, for example, would be forced to rely on less capable on-board radar and battle management systems for information on enemy launches.
Without all the restrictions that the Administration's agreements would impose on missile defense, the United States could deploy a system that is not only more effective and more territorial, but also less costly. The details of such a system are described in Defending America: A Plan to Meet the Urgent Missile Threat, a report by a commission of missile defense experts assembled at The Heritage Foundation. This system clearly would be capable of defending Americans, U.S. troops abroad, and U.S. allies against a ballistic missile attack in the near term.13
Specifically, the system proposed in Defending America would provide global coverage. It requires the U.S. military, first, to upgrade the Navy's Upper Tier system currently under development to defend against theater range missiles. The initial deployment would field 650 interceptor missiles on board the Navy's 22 Aegis ships, which would be situated in strategic locations around the globe. The second stage would involve deploying the military's Brilliant Eyes sensor satellite system, and later a combination of space-based interceptors and space-based lasers, to provide a layered defense.
But this system cannot be deployed unless the Administration removes the strictures it imposes by adhering to the old ABM Treaty. Unfortunately, its agreements, which involve even more severe restrictions on theater missile defenses, would mean that an effective system would be well beyond America's reach.
Defending America offers a rational plan for meeting the nation's missile defense needs, yet the primary obstacles to implementing it are the Administration's unratified agreements and unilateral adherence to the ABM Treaty's limitations. Compared with the Heritage Commission's plan, the Administration's plan would result in a national missile defense system that is both more expensive for the level of protection it would provide and inadequate because it could not protect against certain kinds of missiles.
The Clinton Administration, in negotiating agreements on missile defense with Russia, should consult with the Senate. Because its agreements face certain rejection, the Administration may try instead to convince the Senate that failure to approve its agreements on missile defense would mean that the United States could never field a national missile defense system. But this argument is based on the false premise that the ABM Treaty is still legally binding on America. In fact, the Senate's rejection of the Administration's agreements would confirm that the treaty has expired and allow an unfettered U.S. missile defense program to proceed.
The Administration also may argue that Senate rejection of its agreements would kill prospects for the Strategic Arms Reduction Talks (START) with Russia to obtain additional reductions of offensive nuclear weapons. But further progress on START is now in Russian hands. The Senate has approved START II, and START III has not been negotiated. If the START process should falter, it is Russia's fault. The Duma has not approved START II, and Russia has threatened to withhold its ratification if the United States does not ratify the three agreements signed in New York. Another agreement would fall under the same threat.
- Demand that, before any formal negotiations to amend the ABM Treaty begin, Russia appropriately be made a party to that treaty.
President Clinton has acknowledged that Russia is not a party to the ABM Treaty.14 Indeed, there are no legally recognized foreign parties to the ABM Treaty at this time. This fact supports the growing public support for the argument advanced by policymakers, legislators, and lawyers that the ABM Treaty is no longer legally binding.15
Because Russia is not a party to the ABM Treaty and cannot assume the Soviet Union's obligations under that treaty, the Administration must discuss missile defense issues with Russia strictly on an informal basis.16 Although the Administration signed the Memorandum of Understanding with Russia and three other states in 1997 to make them parties to the ABM Treaty, which would effectively revive the treaty, it cannot ratify or implement the terms of this agreement without the Senate's consent.17 It has yet to submit that MOU to the Senate to obtain its consent or to make Russia a party to the treaty. Senate leaders must make it clear to the Administration that they will view any formal negotiations with Russia to amend the ABM Treaty as a step toward implementing the MOU without Senate consent, which would be illegal.
- Insist that the Administration adhere to the ABM Treaty's requirement that amendments be negotiated in the Standing Consultative Commission (SCC).
If the Administration wants to pursue formal negotiations on amendments to the ABM Treaty, it must follow the treaty's requirement that such amendments be negotiated through an implementing body called the Standing Consultative Commission.18 Because the ABM Treaty is no longer binding and Russia is not a party to it, Russia may not participate formally in SCC deliberations at this time.19 For this reason, the Administration's current diplomacy with Russia on missile defense, which is taking place outside the SCC, is informal at best. To make the process formal and amend the treaty, the Administration must go through the process of reviving the ABM Treaty and making Russia a party to it.
Senate leaders need to be clear that, in
principle, they support formal negotiations with Russia concerning
missile defense issues and are insisting only that the
Administration follow the proper constitutional and international
legal procedures. If the Administration wants to move expeditiously
toward initiating formal negotiations with Russia to amend the
treaty, its proper course of action is to submit the 1997
agreements to the Senate.
Failure to do so only delays the process.
- Support immediate U.S. negotiations with Russia on missile defense that would be conducted outside of the ABM Treaty's legal framework.
There is nothing to bar the Administration from engaging Russia in formal negotiations on the general topic of missile defense. But doing so within the legal framework of the ABM Treaty--which requires that any discussions on amending or implementing the treaty be conducted in the Standing Consultative Committee--creates procedural impediments.
An appropriate forum for conducting negotiations on missile defense is the Defense and Space Talks with Moscow that President Clinton broke off in 1993. These talks, first with the Soviet Union and then with Russia, focused on achieving a cooperative transition to deploying missile defenses in the absence of any ABM Treaty restrictions. The assumption underlying these talks was that Washington and Moscow would want to deploy missile defenses to meet the growing threat and that both eventually would abandon the ABM Treaty. These talks were purposely conducted outside of the Standing Consultative Committee for this reason, but also because Washington wanted to use the SCC specifically and appropriately to address Soviet violations of the treaty.
Reviving the Defense and Space Talks today would remove any uncertainties about the treaty's legal standing from current negotiations with Russia. It would allow the United States and Russia to take a cooperative approach to doing exactly what the ABM Treaty prohibited--deploying missile defenses in the face of the growing threat from the proliferation of weapons of mass destruction around the world. The talks could include, for example, exchanges of information, data declarations, transparency measures, shared assessments of the missile threat, and even a sharing of the benefits of the technology.
The Clinton Administration, in its efforts to negotiate with Russia on missile defense, seems likely to commit the same mistakes it made in negotiating the Comprehensive Test Ban Treaty in 1999. It unwisely chose not to solicit the advice of the Senate prior to signing the CTBT, an agreement that would have prohibited the United States from conducting explosive tests of nuclear weapons.20 The CTBT was neither effectively verifiable nor enforceable. As Senator Richard Lugar (R-IN) stated, the treaty failed to meet the necessary standards for effective arms control.21 As a result, the Senate was forced to reject it.
The Senate can no longer afford to wait for the President to solicit its advice on missile defense. The Constitution gives the Senate a specific role both in advising the President on treaty matters and in consenting to the final products negotiated by the Administration. The Senate should not shy away from its responsibility. Moreover, it should use its constitutional authority to offer forceful and uncompromising advice to the Administration on the likely effects of its diplomacy with Russia.
To enable missile defense to move forward, the Senate should insist that any treaty provide the kind of effective defense against missile attacks that President Clinton at least rhetorically claims to want. Such a defense is not possible under a diplomatic arrangement that would revive the restrictive ABM Treaty. The Senate, by acting now, will not have to reject another faulty arms control treaty later. Moreover, it would enable missile defense to move forward so that millions of Americans will no longer be defenseless against missile attack.
The Senate should insist that the Administration follow the proper constitutional and international legal procedures when negotiating, drafting, signing, and ratifying any missile defense treaty. And President Clinton should ensure that all diplomacy with newly elected Russian President Putin on the issue of missile defense is conducted outside of the framework of the ABM Treaty.
Baker Spring is a Research Fellow in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.
2. See David B. Rivkin, Jr., Lee A. Casey, and Darin Bartram, "The Collapse of the Soviet Union and the End of the 1972 Anti-Ballistic Missile Treaty: A Memorandum of Law," prepared for The Heritage Foundation by Hunton & Williams, Washington, D.C., June 15, 1998, and Douglas J. Feith and George Miron, "Memorandum of Law: Did the ABM Treaty of 1972 Remain in Force After the USSR Ceased to Exist in December 1991 and Did It Become a Treaty Between the United States and the Russian Federation?" prepared for the Center for Security Policy, Washington, D.C., January 22, 1999.
4. The Administration's policy for preserving the ABM Treaty and permanently crippling the ability of the U.S. to defend itself against missile attack was established when President Clinton signed a directive in 1993. For a copy of this directive, see Bill Gertz, Betrayal: How the Clinton Administration Undermined American Security (Washington, D.C.: Regnery Publishing, 1999), pp. 237-241.
5. The meeting in New York produced two more agreements, a joint statement and a series of statements from each of the five participating states. The first of these additional agreements establishes new regulations governing an implementing body called the Standing Consultative Commission (SCC). The second agreement establishes "confidence-building measures" to reassure all parties that the agreements' provisions are being observed. The joint statement commits the parties to exchange information on their missile defense programs annually. The individual statements declare the intentions of each state not to test their systems against shorter-range (theater) missiles in ways that exceed specific parameters. These agreements and statements are not subject to Senate consideration.
11. The content of this additional agreement may be discerned from statements of Clinton Administration officials about the kind of missile defense system under consideration. For example, see statement of Lieutenant General Ronald T. Kadish, USAF, Director, Ballistic Missile Defense Organization, before the Subcommittee on Military Research and Development and the Subcommittee on Military Procurement, Committee on Armed Services, U.S. House of Representatives, February 11, 2000.
12. As a result of his concerns over this shortcoming, Representative David Vitter (R-LA) introduced H.R. 2596 to require the testing of missile defense systems for protecting U.S. forces deployed abroad and U.S. allies against target missiles with the characteristics of the missile launched by North Korea on August 31, 1998.
14. The White House, "Report to Congress on the Memorandum of Understanding Relating to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems of May 26, 1972," February 9, 1999.