[Senate Hearing 105-243]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 105-243

 
                     COMPLIANCE REVIEW PROCESS AND
                            MISSILE DEFENSE

=======================================================================


                                HEARING

                               before the

                SUBCOMMITTEE ON INTERNATIONAL SECURITY,
                  PROLIFERATION, AND FEDERAL SERVICES

                                 of the

                              COMMITTEE ON
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 21, 1997

                               __________

      Printed for the use of the Committee on Governmental Affairs


                  U.S. GOVERNMENT PRINTING OFFICE
  42-600cc               WASHINGTON : 1997

_______________________________________________________________________
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                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   FRED THOMPSON, Tennessee, Chairman
SUSAN M. COLLINS, Maine              JOHN GLENN, Ohio
SAM BROWNBACK, Kansas                CARL LEVIN, Michigan
PETE V. DOMENICI, New Mexico         JOSEPH I. LIEBERMAN, Connecticut
THAD COCHRAN, Mississippi            DANIEL K. AKAKA, Hawaii
DON NICKLES, Oklahoma                RICHARD J. DURBIN, Illinois
ARLEN SPECTER, Pennsylvania          ROBERT G. TORRICELLI, New Jersey
BOB SMITH, New Hampshire             MAX CLELAND, Georgia
ROBERT F. BENNETT, Utah
             Hannah S. Sistare, Staff Director and Counsel
                 Leonard Weiss, Minority Staff Director
                    Michal Sue Prosser, Chief Clerk
                                 ------                                

   SUBCOMMITTEE ON INTERNATIONAL SECURITY, PROLIFERATION AND FEDERAL 
                                SERVICES

                  THAD COCHRAN, Mississippi, Chairman
SUSAN M. COLLINS, Maine              CARL LEVIN, Michigan
PETE V. DOMENICI, New Mexico         DANIEL K. AKAKA, Hawaii
DON NICKLES, Oklahoma                RICHARD J. DURBIN, Illinois
ARLEN SPECTER, Pennsylvania          ROBERT G. TORRICELLI, New Jersey
BOB SMITH, New Hampshire             MAX CLELAND, Georgia
                   Mitchel B. Kugler, Staff Director
                Linda Gustitus, Minority Staff Director
                       Julie Sander, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Cochran..............................................     1
    Senator Levin................................................     3

                               WITNESSES
                         Monday, July 21, 1997

Dr. Kent Stansberry, Deputy Assistant for Arms Control 
  Implementation and Compliance of the Under Secretary of Defense 
  (Acquisition and Technology)...................................     4
    Prepared statement...........................................     6

                                APPENDIX

Questions and responses for the record...........................    23


                     COMPLIANCE REVIEW PROCESS AND



                            MISSILE DEFENSE

                              ----------                              


                         MONDAY, JULY 21, 1997

                                   U.S. Senate,    
                Subcommittee on International Security,    
                      Proliferation and Federal Services,  
                  of the Committee on Governmental Affairs,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Thad Cochran, 
Chairman of the Subcommittee, presiding.
    Present: Senators Cochran and Levin.

              OPENING STATEMENT OF SENATOR COCHRAN

    Senator Cochran. The meeting for the Subcommittee will 
please come to order. Today we have as the subject of our 
hearing, ``The Compliance Review Process and Missile Defense.''
    This past March in Helsinki, Presidents Clinton and Yelstin 
issued a joint statement announcing the outlines of an 
agreement that would draw a demarcation line between theater 
and strategic missile defenses, and they sent their negotiators 
back to Geneva to finalize an agreement. As has happened so 
many times in the past, however, the negotiators were unable to 
agree on the important details and returned last month empty-
handed. But even if they had reached an agreement based on the 
Helsinki joint statement, it would not have drawn a clear 
demarcation line. Any agreement based upon the Helsinki 
statement, after all, offers clarity only for far less capable 
theater missile defenses over which there has been little 
dispute. For the more capable systems, which have been at the 
heart of the nearly 4-year-long ABM-TMD demarcation 
negotiations, Helsinki contains no agreement on demarcation, 
only an acknowledgment that the Treaty parties will continue to 
determine for themselves whether their more capable systems 
comply with the ABM Treaty.
    The process by which the United States makes those 
determinations will continue to be critically important, not 
only for TMD systems, but also for National Missile Defense, 
and is the subject of our hearing today.
    The U.S. Compliance Review Process has, in the past, 
produced results that are unfortunate. For example, early in 
1994, the administration declared that testing the prototype 
THAAD interceptor would be non-compliant and that it would have 
to be treated as an ABM system, even though it could never be 
usefully employed as an ABM system. A year later, the prototype 
was determined to be compliant, provided the capabilities of 
the system were substantially reduced by removing its ability 
to receive satellite cuing data for its radar. According to the 
Administration, the effort required to modify the software in 
accordance with that decision cost the U.S. taxpayer several 
million dollars. Then the Administration announced in September 
of 1996 that not only could the prototype THAAD be tested, so 
could the final, objective system, and both could now be 
equipped with the same satellite cuing capability that we had 
paid to take out of the system earlier. These inconsistencies 
raise serious questions about how these reviews are conducted.
    The Compliance Review Process also passes judgments on our 
National Missile Defense System, and compliance determinations 
will be increasingly important as we move forward on that 
program. Numerous Administration officials, including the 
Director of the Arms Control and Disarmament Agency in 
testimony before this Subcommittee in May of this year, have 
said that our NMD deployment program may have elements that do 
not comply with the ABM Treaty, and might require further 
negotiation with the Russians. For example, Article I of the 
ABM Treaty explicitly prohibits defense of the Nation's 
territory from strategic ballistic missile attack, yet that is 
precisely the purpose of our NMD program. There are numerous 
other potential features of an NMD system that seem to conflict 
with the ABM Treaty, as Director Holum of ACDA testified in our 
May hearing. Whether these apparent incompatibilities can be 
rationalized away will be determined by the same Compliance 
Review Process that governs our TMD programs.
    We have as our witness at today's hearing someone who deals 
with these issues every day. Dr. Kent Stansberry Chairs the 
Defense Department's Compliance Review Group in his capacity as 
Deputy Director for Arms Control Implementation and Compliance 
in the Office of the Under Secretary of Defense for Acquisition 
and Technology. As Chairman of the Compliance Review Group, he 
is responsible for running the process that determines whether 
U.S. weapon systems comply with our treaty obligations. We are 
pleased to have him here to help us better understand the 
Compliance Review Process as it applies to missile defense.
    Today's hearing may touch on matters that are classified 
and we are prepared to move to a closed session if that becomes 
necessary. Our questions will be unclassified, but if your 
answers require a classified response Dr. Stansberry, let us 
know and we will return to those specific questions in closed 
session.
    I am happy to be joined by my distinguished colleague from 
the state of Michigan, Senator Carl Levin today and I yield to 
him at this point for any opening statement or comments that he 
would care to make. Senator Levin.

               OPENING STATEMENT OF SENATOR LEVIN

     Senator Levin. Thank you, Mr. Chairman. And with you, I 
want to join in welcoming our witness here today. This hearing 
is going to provide the Subcommittee and the Senate and the 
public with an opportunity to learn more about how the 
Executive Branch reviews U.S. military programs and systems for 
arms control compliance, particularly with respect to missile 
defenses and the ABM Treaty. This is an important National 
Security topic that is not widely understood.
    Success of Administrations from President Nixon onward have 
viewed the ABM Treaty as an important Treaty because it has 
contributed to strategic stability, prevented an arms race in 
defensive and space weapons systems, and permitted very 
significant reductions in nuclear arsenals that were built up 
during the cold war. Secretary of Defense Cohen and General 
Shalikashvili, Chairman of our Joint Chiefs, have stated 
clearly, these reductions in excess nuclear weapons are 
squarely in our security interests. Now others may disagree 
with the value of the ABM Treaty, but I think most of us 
believe that we should live up to our Treaty obligations, just 
as we expect others to live up to theirs, unless and until we 
or other parties withdraw from or abrogate a Treaty.
    United States Compliance Review Process is a key element in 
ensuring that the United States is in compliance with our arms 
control obligations. It is not a new function. It was set in 
place during the early 70's at the beginning of the era of 
nuclear arms limitation and has been supported by every 
Administration from President Nixon to President Bush through 
to the current Administration.
    In the context of missile defense systems in the ABM 
Treaty, the compliance review process is a contentious issue. 
The treaty has a provision, Article VI(a) that prohibits either 
side from giving non-ABM systems, ABM capabilities, and 
prohibits testing non-ABM systems in an ABM mode. Thus, we need 
to know what the demarcation is between theater missile 
defenses and strategic or National missile defenses. Congress 
has urged the President to negotiate this demarcation and has 
provided guidelines for the demarcation. If we can negotiate a 
demarcation agreement with Russia, it will remove these theater 
systems from the table as potentially contentious issues. The 
Administration is currently negotiating this issue in Geneva.
    The Senate has a uniquely constitutional role in providing 
advice and consent to treaties. Consequently, we have a strong 
interest in matters relating to arms control treaty issues, 
including compliance. This hearing will help to inform the 
Senate on these important issues and I want to thank you, Mr. 
Chairman, for convening this hearing to help us to understand 
the issues more fully and to have a record which will be 
available to all of our colleagues.
    Senator Cochran. Thank you very much, Senator Levin, for 
your comments and your participation in this series of hearings 
that we are having on the subjects that are related to this 
issue today.
    Dr. Stansberry, we have a copy of your prepared statement 
for which we thank you and we will make that a part of the 
record in full. We encourage you to make whatever comments you 
think would be helpful to our Subcommittee at this time. You 
may proceed.

  TESTIMONY OF DR. KENT STANSBERRY, DEPUTY ASSISTANT FOR ARMS 
CONTROL IMPLEMENTATION AND COMPLIANCE OF THE UNDER SECRETARY OF 
              DEFENSE (ACQUISITION AND TECHNOLOGY)

    Dr. Stansberry. Thank you, Mr. Chairman, Senator Levin, and 
staff. I appreciate the opportunity to appear before you and 
discuss the Arms Control Compliance Review Process.
    I plan to focus primarily on the application of that 
process, the ABM Treaty, and particularly theater missile 
defenses (TMD), under the ABM Treaty.
    The Department of Defense decides the treaty compliance 
questions through an established review process. It was created 
in connection with the SALT I agreements, which includes the 
ABM Treaty, back in 1972. The process is defined completely and 
more clearly in a DOD Directive which I believe the staff has a 
copy of. Under this process, the military services and other 
defense agencies must seek compliance approval before taking 
any action that might reasonably raise a question of 
compliance. The Under Secretary of Defense for Acquisition and 
Technology, who is my boss, has been authorized by the 
Secretary to ensure compliance of the Department of Defense and 
to provide guidance to the services and agencies in 
coordination with the DOD General Counsel, the Under Secretary 
of Defense for Policy, and the Chairman of the Joint Chiefs of 
Staff. In practice, most of the detailed work is carried out by 
a Compliance Review Group. I Chair that group for the ABM 
Treaty.
    Let me just speak briefly to the details of the process. A 
formal compliance review generally begins when a service or 
defense agency brings forward a particular plan or program with 
proposed activity. That activity is then compared with our 
obligations to determine whether it is acceptable or whether 
there may be a need for modifying the activity. In doing that, 
we determine the obligations through a general pattern that 
includes reading the Treaty text and its associated documents, 
and examining the record of Senate approval to determine how 
the Executive Branch explained the Treaty to the Senate as a 
part of our Constitutional process of making treaties. We also 
examine the relevant practices of the parties to determine how 
the parties have behaved in the past with respect to particular 
obligations and we often examine the negotiating record to 
consider how the parties understood the text as they negotiated 
it.
    This formal process of compliance review ends typically 
with guidance to the service or agency that initiated their 
request. The guidance is generally provided by the Under 
Secretary for Acquisition and Technology with the concurrence 
of representatives of the Under Secretary for Policy, the 
General Counsel, and the Joint Staff. One particular strength 
of that process is that the final decisions represent consensus 
of those organizations. And in fact, every single past 
compliance determination has been a consensus. There has not 
been a dissenting view in any past decision.
    Occasionally, we will raise issues with other agencies of 
the Executive Branch, particularly the State Department, the 
Arms Control Agency and the National Security Council staff, 
when the issues involve matters that may effect them.
    Now, let me talk specifically about theater missile defense 
for a little bit. The ABM Treaty does not explicitly limit 
theater missile defenses, but implicitly limits them through a 
provision which was intended to prevent upgrade. Let me read 
that: Article VI of the Treaty States in part, ``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 missiles, ABM launchers, or ABM 
radars, capabilities to counter strategic ballistic missiles or 
their elements in flight trajectory, and not to test them in an 
ABM mode.''
    The United States was the sponsor of that language back in 
the early 1970's, when the Treaty was negotiated, primarily 
because of our concern about widely deployed air defenses in 
the Soviet Union and the possibility that those air defenses 
may represent a defensive capability against our ICBMs and 
SLBMs. That prohibition on upgrading non-ABM systems and 
components in Article VI(a) defines two quite specific 
obligations: (1) not to give capabilities to counter strategic 
ballistic missiles, and (2) not to test in an ABM mode. For the 
purpose of evaluating the capabilities to counter, we must use 
hypothetical capabilities because we cannot test our theater 
missile defense systems against strategic ballistic missiles to 
determine actual capabilities. Thus, we have assessed these 
capabilities to counter on the basis of computer simulations of 
performance of theater missile defense systems to counter 
strategic ballistic missiles. For example, in our evaluation of 
the Theater High-Altitude Area Defense (THAAD) System, we used 
computer simulations of the hypothetical performance of THAAD 
against Russian ICBMs and Russian SLBMs.
    In assessing these simulations, we look extensively at past 
practices of the parties. A key element of that past practice 
was a report that was provided to Congress in February of 1986 
by the Executive Branch where we discussed U.S. views about 
Soviet activity regarding air defenses. A key part of that was 
concluding that in making these determinations to apply Article 
VI(a), they must be made taking into account the military 
significance of whatever ABM capability is present in these 
non-ABM systems.
    Now, as a practical matter we have assessed this military 
significance on the basis of the simulated hypothetical 
performance of a single TMD interceptor missile and radar to 
intercept a single reentry vehicle from certain Russian ICBMs 
and SLBMs.
    As I mentioned, there is a second obligation of Article 
VI(a), not to test in an ABM mode. The meaning of that Article 
is substantially clearer because in the mid and late 1970's, we 
negotiated an agreed statement that provided substantial 
definition of the term, ``tested in ABM mode'' as it applies in 
the Treaty.
    The Department of Defense has a number of TMD programs in 
various stages of development and deployment. All of these TMD 
programs are going forward without ABM Treaty effects on the 
capabilities necessary for them to meet their requirements. As 
the Department has previously informed the Congress, we have 
certified the compliance of the Patriot, Navy Area Defense, and 
Navy Theater Wide Systems and the THAAD System--in the case of 
THAAD, both the User Operational Evaluation System and the 
objective system. We have certified those compliant, as all of 
those programs are currently planned. Thus, we have certified 
as Treaty compliant all existing TMD programs that have matured 
to the point where it is possible for us to assess their 
compliance. These programs are proceeding without ABM Treaty 
effects on their intended capabilities for theater missile 
defense.
    If the programs change, we will of course review them for 
compliance purposes in the future and make any additional 
compliance assessments as necessary based on program changes.
    Now, let me speak briefly about National Missile Defense. 
The administration's policy with respect to ABM Treaty 
compliance in National Missile Defense is somewhat subtle. The 
policy is that development and testing of a National Missile 
Defense system will comply with the existing treaty. However, 
the system that we would deploy would be determined by the 
threat we face if we were to decide to deploy. That threat 
would decide the nature of the system architecture and then if 
that architecture requires that we change the ABM Treaty, we 
are prepared to seek those changes.
    With respect to National Missile Defense, the Department is 
currently in the process of selecting a lead system integrator 
which will be responsible for development and if necessary 
deployment of an integrated National Missile Defense system. 
Given the immature status of that system design and the testing 
plans at this moment, it is not possible to make any definitive 
compliance assessments regarding National Missile Defense 
development testing. However, since the Treaty already 
specifically allows ABM testing, fully capable testing, of ABM 
systems in a fixed land-based mode, we expect that we will be 
able to carry out our National Missile Defense development and 
testing consistent with the Treaty. As I have mentioned, we 
would be willing to modify the Treaty to proceed with 
deployment.
    I appreciate the opportunity to appear before the 
Subcommittee and I am prepared to help answer any questions 
that you may have.
    [The prepared statement of Dr. Stansberry follows:]

                PREPARED STATEMENT OF KENT G. STANSBERRY
    Mr. Chairman, Members of the Subcommittee, and Staff: I wish to 
thank you for the opportunity to discuss with you the DOD arms control 
compliance review process. I plan to address the application of that 
process to the evaluation of missile defense programs and their 
compliance with the Anti-Ballistic Missile (ABM) Treaty. I plan to 
focus particular attention on the DOD theater missile defense CFMD) 
programs. I understand that ABM Treaty compliance for these programs is 
a specific interest of the subcommittee.
    The Department of Defense decides treaty compliance questions 
through an established compliance review process. This process was 
created in connection with thee SALT I agreements, which included the 
ABM Treaty, in 1972. (This process is defined in DOD Directive 2060.1) 
Under this process, the Military Services and Defense Agencies must 
seek compliance approval before taking any action that would reasonably 
raise a compliance issue. The Under Secretary of Defense (Acquisition 
and Technology) has been authorized by the Secretary to ensure 
compliance for the Department of Defense and to provide compliance 
guidance to the Services and Agencies in coordination with the DOD 
General Counsel, the Under Secretary of Defense (Policy), and the 
Chairman of the Joint Chiefs of Staff. In practice, most of the 
detailed work supporting the compliance review process is carried out 
by the DOD Compliance Review Group, which is made up of representatives 
from the organizations just mentioned. I chair that Compliance Review 
Group for the ABM Treaty.
    The advent of the Strategic Defense Initiative in 1984 led to 
increased activity in the DOD compliance review process for the ABM 
Treaty. Prior to that time, our ballistic missile defense program 
consisted primarily of studies and technology development. Since then, 
however, the arms control compliance review process has approved more 
than 100 individual tests or complete programs as consistent with the 
ABM Treaty. In summary, we have been successful in assuring that 
programs achieve their objectives while remaining in compliance with 
the ABM Treaty.
    General Approach to Compliance Review
    We have found through long experience in evaluating compliance 
questions that we need specific and detailed information in order to 
make compliance decisions. This is so because these decisions generally 
depend on the detailed nature of both the activity to be undertaken and 
the performance of the particular devices involved. Said differently, 
we have not found it useful or appropriate to try to address treaty 
compliance-questions in the abstract, but rather we address them in the 
context of information about specific and detailed plans. This 
consideration is important as we deal with compliance questions for our 
TMD programs.
    A formal compliance review generally begins with a Military Service 
or Defense Agency bringing forward a plan or program for proposed 
activity. That activity is compared to U.S. arms control obligations to 
determine whether it is acceptable or would need to be modified. In 
determining the obligations, we follow a general pattern to assure that 
our interpretations are accurate and consistent in the complicated and 
ambiguous circumstances which often apply. The text of the Treaty and 
its associated documents, such as agreed statements and common 
understandings, fundamentally define the obligations. We can 
occasionally clarify the obligations by examining the Senate approval 
record to determine how the Executive Branch explained the treaty as 
part of our constitutional process of making treaties. We can further 
clarify the obligations by examining the relevant practices of the 
treaty parties to determine how the particular text has been 
interpreted in the past. These past practices can involve both the 
actions and the statements of the parties. Finally, we can clarify the 
obligations by examining the treaty negotiating record to consider how 
the parties understood the meaning during the process of drafting the 
text.
    The formal compliance review process ends in guidance to the 
initiating Military Service or Defense Agency. The guidance is 
generally provided by the Under Secretary of Defense (Acquisition and 
Technology) with the concurrence of representatives of the Under 
Secretary of Defense (Policy), the DOD General Counsel, and the Joint 
Staff One basic strength of the compliance process is that the final 
decisions represent consensus. In fact, every past formal compliance 
determination has been a consensus. Compliance issues are also 
occasionally considered in the interagency context with the State 
Department, the Arms Control and Disarmament Agency, and the National 
Security Council Staff

              Theater Missile Defenses and the ABM Treaty

    Although the ABM Treaty does not explicitly limit TMD, it does so 
implicitly. Article VI of the ABM Treaty states, in part:

          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 missiles, ABM launchers, or 
        ABM radars, capabilities to counter strategic ballistic 
        missiles or their elements in flight trajectory, and not to 
        test them in an ABM mode; . . .

This provision supports other Treaty limitations on the development, 
testing, and deployment of ABM capability by prohibiting ``upgrading'' 
non-ABM components to give them ABM capabilities.
    When the ABM Treaty was negotiated, the issues associated with 
Article VI(a) were reasonably straightforward. At that time, the United 
States was concerned about the potential ABM capability of the widely 
deployed Soviet air defense systems and, thus, pressed during the 
negotiations for the inclusion of a prohibition on upgrading non-ABM 
components. More recently, however, particularly with the development 
of highly capable TMD systems, the issues associated with Article VI(a) 
have become more complex.
    The prohibition on upgrading non-ABM systems and components in 
Article VI(a) of the ABM Treaty defines two specific obligations: (1) 
not to give ``capabilities to counter strategic ballistic missiles'' 
and (2) not to ``test in an ABM mode.'' For the purpose of evaluating 
compliance of TMD systems with the first obligation, we assess 
hypothetical ``capabilities to counter.'' They must be hypothetical 
capabilities because we cannot test TMD systems against strategic 
ballistic missiles to determine actual capabilities. Thus, we have 
assessed those capabilities on the basis of the simulated performance 
of TMD systems to counter strategic ballistic missiles. For example, in 
our evaluation of the compliance of the Theater High-Altitude Area 
Defense (THAAD) System, we used computer simulations of the 
hypothetical THAAD performance against Russian ICBMs and SLBMs.
    In assessing the results of these simulations, we look extensively 
at the past practices of the ABM Treaty Parties. In February 1986, the 
Executive Branch, in a report to Congress submitted by the Director of 
the U.S. Arms Control and Disarmament Agency, discussed past Soviet air 
defense practices and reached the following conclusions:

          Clearly, the phrase ``capabilities to counter'' as used in 
        the ABM Treaty was intended to have the ordinary meaning of 
        ``blocking'' or ``stopping'' a reentry vehicle. In the context 
        of the ABM Treaty giving a [surface-to-air missile system] 
        ``capabilities to counter strategic ballistic missiles'' meant 
        giving them actual ABM capabilities.
          Since virtually any air defense missile system has some level 
        of ABM capability, the Treaty was not intended to preclude an 
        incidental or insignificant ABM capability. Such a 
        determination must ultimately be a factual determination taking 
        into account the military significance of whatever ABM 
        capability is present.

As a practical matter, we have assessed this ``military significance'' 
on the basis of the simulated, hypothetical performance of a single TMD 
interceptor missile and radar to intercept a single reentry vehicle 
from certain Russian (formerly Soviet) ICBMs or SLBMs.
    The meaning of the second obligation of Article VI(a), not to 
``test in an ABM mode,'' is substantially clearer than the meaning of 
the first. The United States and the Soviet Union held discussions in 
the Standing Consultative Commission (the organization established by 
the ABM Treaty to promote the Treaty's objectives and implementation) 
during the 1970's on questions related to air defense activities under 
the Treaty. Those discussions resulted in an Agreed Statement of 
November 1978 giving a detailed definition of ``tested in an ABM mode'' 
as used in the Treaty.
    The Department of Defense has a number of TMD programs in various 
stages of development and deployment. All of these TMD programs are 
going forward without ABM Treaty effects on the capabilities necessary 
to meet their requirements. As the Department has previously informed 
the Congress, we have certified the compliance of the Patriot, Navy 
Area Defense, and Navy Theater Wide systems and the THAAD system--both 
the User Operational Evaluation System and the objective versions of 
THAAD--as they are currently planned. DOD has now certified as treaty 
compliant all existing U.S. TMD programs that have matured to a point 
where it is possible to assess compliance. These programs are 
proceeding without any ABM Treaty effects on their intended 
capabilities for theater missile defense. We will of course, review for 
compliance purposes any changes to these programs. DOD will make any 
further compliance assessments that are necessary for U.S. TMD systems 
at the appropriate points in their programs.
    The United States has been negotiating with Russia and other newly 
independent states to reach agreement on demarcation between ABM 
systems and non-ABM TMD systems. We have not yet concluded an 
agreement, and the negotiations are continuing. In the meantime, 
compliance determinations for TMD systems will remain a national 
responsibility. In light of the fact that we have already certified as 
treaty compliant all existing U.S. TMD programs that are sufficiently 
mature to allow a compliance assessment, we do not need the demarcation 
agreement in order for our TMD programs to proceed as currently 
planned.

              National Missile Defense and the ABM Treaty

    The DOD program for National Missile Defense (NMD) is currently in 
development. The program will be prepared, within three years, to 
deploy a NMD system within an additional three years, should a 
ballistic missile threat to the United States warrant such deployment. 
The Administration's policy is that development and testing in the NMD 
program will comply with the existing ABM Treaty. Should we decide to 
deploy, the system which we would deploy would be determined by the 
threat and might comply with the existing Treaty, or might require 
Treaty modification.
    The Department is currently in the process of selecting a Lead 
System Integrator which will be responsible for developing and, if 
necessary, deploying an integrated NMD system. Given the immature 
status of the system design and testing plans, it is not possible at 
this time to make any definite compliance assessments regarding NMD 
development and testing. Since the ABM Treaty specifically allows 
development and testing of fixed, land-based ABM systems and 
components, we expect that we can carry out NMD development and testing 
consistent with the Treaty.
    Thank you for the opportunity to appear before the subcommittee. I 
would be happy to answer any questions you may have.

    Senator Cochran. Thank you very much, Dr. Stansberry.
    You may have heard in my opening statement that I made a 
comment about inconsistencies that have raised questions about 
how the reviews under the current process are conducted. 
Specifically, I referred to the decision that was made in 1994 
about the testing of the prototype THAAD interceptor. That it 
would be non-compliant and it would have to be treated as an 
ABM system, even though it could never be usefully employed as 
an ABM system, and then later the prototype was determined to 
be compliant provided that capabilities of the system were 
substantially reduced by removing its ability to receive 
satellite cueing data for its radar.
    According to our information, the effort required a 
modification of software with that decision costing U.S. 
taxpayers several million dollars. And then the administration 
in 1996 announced that not only could the prototype THAAD be 
tested, so could the final objective system and both could now 
be equipped with the same satellite cuing capability that we 
had paid to take out of the system earlier.
    Do you recall the circumstances surrounding those decisions 
and can you explain to us what happened in that situation and 
why?
    Dr. Stansberry. I do recall. Some of that occurred while I 
was in my current position. Some of it preceded me. It does 
seem inconsistent on its face and I hope I can help clarify. 
The Administration, as a part of a process of reviewing the ABM 
Treaty when the Administration first took office, examined some 
of these questions. That review ended in the decision to 
proceed with negotiations on demarcation. Part of that review 
also examined what was then understood of THAAD's performance 
capability and concluded that THAAD, as then we understood it, 
would have to be treated as an ABM system under the ABM Treaty.
    In January 1995 the THAAD Demonstration and Validation 
Program, basically the initial test program for THAAD, was 
approved on the basis that THAAD would not have some particular 
software to allow it to process information from external 
sensors to allow it to help perform its mission. That software 
was not needed for the Demonstration and Validation Program and 
it was on the basis that it was not going to be either needed 
or procured for that program that the approval was given.
    As the program proceeded, it got to the point where it 
either needed to proceed with development of that software, or 
risk delays in the program. It was at that point that we did a 
much more substantial review of the performance consistent with 
the compliance review process I described earlier. Several 
things were different between 1993 and 1994 when the first 
reviews were carried out and in 1996 when we finished. There 
were several changes in the projected THAAD performance which 
were different. If the Subcommittee is interested, I can get 
into those changes in detail in closed session, but I am not 
prepared in open session.
    There are several changes in the details of the 
performance. In one area we made some assumptions about the 
performance, assumptions which were conservative in the context 
of that analysis. It was conservative in the sense that it 
would err on the side of having the U.S. not do something 
illegal under the Treaty. Later, by September 1996, we 
understood the performance of THAAD much better and we 
understood the application of some of the particular 
assumptions much better so that with no changes to THAAD based 
on Treaty reasons, and no changes to the compliance review 
process, we were able with a much more detailed evaluation of 
THAAD's performance, we were able to conclude that it would 
have no ABM capability. It was on that basis that it was 
approved back in September.
    Senator Cochran. You mentioned in your statement that one 
of the centerpiece considerations in the review process is the 
military significance standard. My staff tells me that in a 
recent briefing, Mr. O. J. Sheaks, who is Acting Assistant 
Director for Intelligence, and Verification Information 
Management at the Arms Control and Disarmament Agency, said 
that in judging compliance of Russian systems, their 
evaluations are ``partly technical, partly political, and 
partly military significance.''
    Is military significance the standard used in assessing 
compliance of U.S. systems?
    Dr. Stansberry. Mr. Chairman, I believe we also take into 
account the other two elements--the technical and the 
political. As I described in my statement--the simulated 
hypothetical performance of TMD systems against Russian 
strategic missiles is the technical element. The compliance 
review process, as I mentioned, involves participation from the 
Policy part of OSD and the General Counsel part of OSD. Part of 
the reason for their participation is to try to make sure that 
we maintain consistency between the way we are applying the 
treaty to the other side and the way we apply the treaty to 
ourselves.
    Senator Cochran. In your assessments of the military 
significance, do you take into account operational factors, 
including basing modes, the number of launch platforms and 
missiles, the location of TMD systems and the character of a 
likely strategic attack?
    Dr. Stansberry. To date, we have not. We have done that 
assessment on the basis of a single TMD system to counter a 
single incoming strategic reentry vehicle. We have been using 
that approach, as I mentioned earlier, to approve the 
compliance of all existing TMD systems. So, similar to many 
elements of law, we have gotten to the point in reviewing the 
practices of the parties and the meaning of the Treaty, that we 
needed to assess compliance and have simply left undecided 
further questions that are not necessary to make individual 
decisions.
    Senator Cochran. We have been advised that the Arms Control 
and Disarmament Agency relies upon the Joint Staff in judging 
whether Russian TMD capabilities are militarily significant.
    Do we also rely on the Joint Staff to judge U.S. 
capabilities in terms of their military significance? If we do 
not rely on the Joint Staff or involve them in any way, why do 
we not do that?
    Dr. Stansberry. The Joint Staff is a part of the compliance 
review process as directed by the Secretary in the DOD 
Directive. The Joint Staff, you probably need to talk to them 
to understand in more detail their view about this, but I 
believe, again, one of the things that they are sensitive to is 
making sure that we apply the Treaty to ourselves in a way that 
is consistent with the way that we apply it to other parties.
    Senator Cochran. It would not be fair, then, to say that we 
are judging the Treaty against ourselves more narrowly than we 
judge it against possible Russian compliance with the treaty. 
Would that be fair or would it not be?
    Dr. Stansberry. Well, in the end we have not found--let me 
back up. In the sense that we have allowed all existing 
programs to proceed, we have not found it necessary to identify 
some particular outer boundary--the outer boundary of 
compliance.
    Senator Cochran. But it seems that there have been 
modifications and changes in plans and programs because of 
constraints imposed by those who are judging compliance with 
ABM provisions, is that not correct?
    Dr. Stansberry. The THAAD program was not allowed to 
develop cueing software for more than a year based on 
compliance considerations. However, with the approval of THAAD 
last September, they were free to proceed with the development 
of that software without any restrictions on the way they 
planned to develop the program.
    Senator Cochran. Thank you. Senator Levin.
    Senator Levin. Was there a change in the software between 
the time it was not approved and the time it was approved?
    Dr. Stansberry. I think in minor detail there was a change 
in specific requirements, but no change that was important to 
this particular issue. The software was allowed to proceed 
without any restrictions.
    Senator Levin. What had changed then? Was it an 
understanding of what the software did or was it an 
interpretation of the Treaty requirements or something else 
that I can't think of?
    Dr. Stansberry. Two general areas: The system itself 
changed in technical ways.
    Senator Levin. You are saying those are unrelated to these 
considerations that we are talking about?
    Dr. Stansberry. That is right. There were changes because 
of programmatic considerations.
    Senator Levin. So then my question then remains was it 
approved relative to Treaty compliance a year later because of 
a different interpretation of where the demarcation line is or 
where the prohibitions were in the treaty in some other area? 
What changed in that year? I am not talking about the technical 
changes which are unrelated to the issue we are talking about. 
What changed relative----
    Dr. Stansberry. Relative to the interpretation of the 
Treaty, nothing.
    Senator Levin. What did change?
    Dr. Stansberry. The capabilities intended to be in THAAD 
and some capabilities that were originally assumed to be in 
THAAD that we later found out were not going to be there. I 
would be prepared in closed session to discuss that in whatever 
detail that you are interested in.
    Senator Levin. No, I do not for this session need the 
details as to what those changes were specifically. But it was 
the understanding then of what the capability of that system 
was that changed during the year?
    Dr. Stansberry. That is correct, not the interpretation of 
Article VI(a) of the Treaty.
    Senator Levin. Does the Department of Defense have the sole 
responsibility for compliance review of U.S. military systems 
and activities? I know there are consultations with the State 
Department or the Arms Control and Disarmament Agency, but is 
it the DOD's responsibility ultimately for that compliance 
review of military systems?
    Dr. Stansberry. In a strict sense, yes. The Secretary is 
responsible for making sure that the activities of the 
Department are legal. He has designated the Under Secretary for 
Acquisition of Technology the responsibility to make sure that 
the Department's activities are consistent with arms control 
obligations, and then he has laid out a process for review of 
things within the Department. Occasionally when there are 
issues that we know are of concern to other agencies, we will 
go to them and discuss these issues with them as well.
    Senator Levin. Now, does the Compliance Review Group for 
instance on the ABM Treaty, obtain the advice and the expertise 
of the Joint Staff and the JCS?
    Dr. Stansberry. Yes. The Joint Staff participates. They are 
a member of the Compliance Review Group.
    Senator Levin. What about the JCS, do they get involved or 
is their advice sought?
    Dr. Stansberry. Do you mean the Chairman?
    Senator Levin. Themselves.
    Dr. Stansberry. The Joint Chiefs themselves?
    Senator Levin. Right.
    Dr. Stansberry. Occasionally issues of particularly 
sensitive issues will go all the way to the Chairman for his 
approval; and while I do not have a lot of insight into the 
details of the way the Joint Staff runs its process, I believe 
that their approval always represent the views of the Chairman 
and the Chiefs.
    Senator Levin. So that these compliance reviews are not a 
matter of just a few attorneys sitting around theorizing as to 
what might or might not be compliant, you get the inputs here 
of the Joint Staff and the JCS?
    Dr. Stansberry. And the Joint Staff coordinates on the 
decision.
    Senator Levin. You have had a consensus on every compliance 
decision?
    Dr. Stansberry. Every single one.
    Senator Levin. The Compliance Review Group that you Chair 
has made over 100 certifications, as I understand it, for tests 
or programs as being compliant with the ABM Treaty, is that 
accurate?
    Dr. Stansberry. Yes, sir.
    Senator Levin. Over what period of time would that be?
    Dr. Stansberry. I went back and counted that number. That 
is 100 since the advent of the SDI Program in about 1984.
    Senator Levin. So in the last maybe 13 years?
    Dr. Stansberry. Yes, sir. And I believe the number is 107 
at the moment.
    Senator Levin. And climbing. What is the relationship 
between your group and the Standing Consultative Commission 
delegation?
    Dr. Stansberry. The delegation to the Standing Consultative 
Commission (SCC) is the U.S. Government delegation that 
discusses Treaty implementation issues with the other side in 
the Treaty. The SCC delegation is an Executive Branch-wide 
delegation, so it includes representatives from the Defense 
Department, the State Department, the Arms Control and 
Disarmament Agency, and the Intelligence Community. I am 
generally aware of what is going on because what they do can 
have some effect on my responsibility. As a matter of fact, 
about 16 or 18 years ago, I participated in a couple of 
sessions with that group. I do not directly participate 
anymore.
    Senator Levin. You are assuring this Subcommittee that 
except for that 1 year period where there was an understanding 
relative to the software, which turned out to be inaccurate for 
whatever reason we could learn in a closed session, that the 
United States has not reduced the capability of any theater 
missile defense system in order to make them compliant with 
ABM, is that correct?
    Dr. Stansberry. That is correct. That applies to all the 
other systems and in fact----
    Senator Levin. All the other systems?
    Dr. Stansberry. The Patriot, the Navy Theater Wide System, 
the Navy Area System are all theater missile defense (TMD) 
systems that are underway and that this statement applies to. 
With respect to THAAD, what happened was that THAAD did not 
need that capability through its demonstration and validation 
program and so it never actually limited the necessary 
capability. What it did was cost, as the Chairman said, I 
believe about $3.2 million dollars to assure during that period 
of time that we did not inappropriately develop the software. 
It did not result in any capability limitation of THAAD or any 
delay of THAAD, however.
    Senator Levin. Does the United States and Russia each make 
their own National compliance determinations?
    Dr. Stansberry. We do and it appears that the Russians do. 
They have not brought any to us asking for our approval.
    Senator Levin. Are you familiar with the provision of the 
1996 Defense Authorization Act which defines the ABM qualifying 
flight test as a flight test against the ballistic missile 
which in that flight test exceeds a range of 3,500 kilometers 
or a velocity of 5 kilometers per second?
    Dr. Stansberry. Yes, sir, I am.
    Senator Levin. Is that the test which is also sought to be 
agreed upon in our negotiations with the Russians? Is that the 
demarcation line?
    Dr. Stansberry. That is the demarcation line. The 
characteristics for targets against which we would test theater 
missile defense systems under the ongoing demarcation 
negotiations.
    Senator Levin. But that is the position that we have taken 
for the target demarcation line, is that correct?
    Dr. Stansberry. Yes.
    Senator Levin. And that is the same demarcation line as 
Congress has put into its, I think it was the Sense of the 
Congress language of 1996?
    Dr. Stansberry. Yes, Senator.
    Senator Cochran. Dr. Stansberry, our staff has prepared a 
chart showing the compliance status of U.S. theater missile 
defense systems as they stand today and as they would under the 
Helsinki demarcation agreement. If this chart is accurate, it 
seems like the Helsinki agreement does not help us much in 
determining compliance. In fact, with the exception of making 
clear that lower velocity systems can use data from the space-
based SMTS sensor, the net effect seems to be to ban systems 
whose compliance status is uncertain at this time. I invite you 
to take a look at that chart. One is on display on the easel 
and you have been given a small copy there for your review.
    [The chart referred to follows:]


     Compliance Status of TMD Systems With and Without the Helsinki     
                          Demarcation Agreement                         
------------------------------------------------------------------------
                                 Status Without          Status With    
           System                  Demarcation           Demarcation    
                                    Agreement             Agreement     
------------------------------------------------------------------------
PAC-3                             Compliant             Compliant       
Navy Area                         Compliant             Compliant       
THAAD                             Compliant             Compliant       
Navy Theater                      Compliant             Compliant       
  (``baseline'')                                                        
Navy Theater                          ?                     ?           
  (improved radar)                                                      
Navy Theater                          ?                     ?           
  (launch on composite data)                                            
Navy Theater                          ?                     ?           
  (use of SMTS data)                                                    
Airborne Laser                        ?                     ?           
Space-based Laser                     ?                 Non-complaint   
Space-based Interceptor               ?                 Non-complaint   
------------------------------------------------------------------------

    Senator Cochran. The suggestion this chart makes is that 
those systems that you have already described that have already 
been approved--the advanced Patriot system, in the Navy Area, 
THAAD and Navy Theater have all been considered compliant by 
your group. Even without a demarcation agreement in accordance 
with the Helsinki statement, they would be compliant. Is that 
not correct?
    Dr. Stansberry. That is correct.
    Senator Cochran. And then these other systems are 
mentioned: Navy theater without an improved radar, launch on 
composite data, and use of SMTS data. Tell us what that is.
    Dr. Stansberry. That is the Space Missile Tracking System. 
It more recently is called the low altitude component of the 
Space-Based Infrared System (SBIRs). Years ago, 2, 3 or 4 years 
ago, it was known as ``Brilliant Eyes.''
    Senator Cochran. Right. SMTS is more politically correct 
than Brilliant Eyes I think is what they decided. And then the 
airborne laser is listed in the same category. Now, all of 
those we have put questions marks by is because their status is 
in question without a demarcation agreement and with an 
agreement based on the Helsinki statement would still be 
uncertain. And for the last two--the space-based laser and 
space-based interceptor--under the column ``Status Without 
Demarcation Agreement'' their compliance is in question, but 
with the Helsinki statement both would be non-compliant.
    Do you agree with that depiction on this chart of those 
conclusions and if you do, tell us why you do and if you do 
not, tell us why you do not.
    Dr. Stansberry. Most of them, Mr. Chairman. The three 
entries involving Navy Theater Wide with various levels of 
upgrade and the airborne laser are all uncertain today because 
there is no well-defined program to do either of those that 
would allow us to assess the compliance.
    Senator Cochran. You mean any?
    Dr. Stansberry. I'm sorry. Any of those, yes. The various 
upgrades to Navy Theater Wide are just simply too immature to 
understand the performance of the system well enough to be able 
to apply the process I discussed before. The airborne laser, an 
Air Force program, is in a similar state where it is not 
sufficiently mature to allow us to make compliance judgments. 
Our current understanding is that that program would probably 
not carry out the kind of test that would raise ABM Treaty 
issues for about another 5 years.
    Now, where I guess I would take a certain exception to the 
chart is with respect to space-based lasers and space-based 
interceptors without a demarcation agreement. In the 
preparations for the Helsinki summit, the administration--well, 
let me back up for a second. The ABM Treaty contains an 
unequivocal ban on ABM systems and ABM components that are 
space-based. The question arose, ``Can you have a theater 
missile defense system that is space-based, consistent with the 
ban on ABM systems, consistent with the understanding that it 
must not have capability to counter, must not be tested in an 
ABM mode?''
    In the preparations for the Helsinki summit, the 
administration considered that question and, for a variety of 
technical reasons, concluded that it was probably impossible to 
have a space-based theater missile defense system which was not 
also a space-based ABM system and it was on that basis that the 
administration--the President--agreed at the Helsinki summit to 
ban space-based TMD, both interceptors and systems based on 
other physical principles.
    Senator Cochran. Was that a decision made in consultation 
with Russian counterparts, or just here within the United 
States?
    Dr. Stansberry. I believe that was a unilateral U.S. 
decision.
    Senator Cochran. Was there any reason to suspect that the 
Russians would have lodged a complaint or protest if we had 
proceeded to use a space-based component in a theater missile 
defense system?
    Dr. Stansberry. Well, based on past Russian performance, I 
would suspect that it would, almost certainly. They would raise 
a compliance issue.
    Senator Cochran. Is there any way to have an early 
detection of a launch from a missile site aimed at us if you do 
not have a space-based detection system?
    Dr. Stansberry. We currently have a ballistic missile early 
warning system. It is a sort of evolution of the system that 
goes back to the early 1970's, the Defense Support Program, and 
it provides notification of the launch within tens of seconds 
after it occurs.
    Senator Cochran. And that is not prohibited under the ABM 
Treaty, right?
    Dr. Stansberry. That is correct.
    Senator Cochran. And what is prohibited, the ability to 
track?
    Dr. Stansberry. No--Article VI(a) prohibits giving 
components the capability to counter and testing them in ABM 
mode. In Article V, it prohibits development, testing and 
deployment of space-based ABM systems; and we have defined 
systems as those which have in effect capability to counter as 
ABM systems in the past.
    Senator Cochran. According to your testimony, we perform a 
comprehensive review of our systems every year to be sure they 
are compliant, but according to ACDA, which is responsible for 
evaluating Russian compliance with the Treaty, the U.S. does 
not systematically review Russian capabilities to ensure they 
are compliant; instead I am advised that we wait for evidence 
of non-compliance to appear and then we investigate that. But 
even then, if we do not turn up clear evidence of non-
compliance, the Russians would not be charged with a violation.
    Is this a double standard by which the burden of proof on 
the U.S. is to demonstrate conclusively to itself that any 
system we have could not possibly, even on a theoretical basis, 
have ABM capability, while with respect to Russian systems, the 
proof is related to a demonstration that they do have 
capability?
    Dr. Stansberry. If there is a double standard here, Mr. 
Chairman, it is with respect to the timing of the issues, much 
less than the substance of the performance. Timing in the sense 
that we generally do not know what the Russians are doing until 
they have actually demonstrated something in a test. For our 
purposes, we would not pay the money to carry out a test that 
would be a violation. So we stop activity which might be 
inconsistent with the Treaty substantially earlier in the 
natural development of a program when we might see the 
comparable activity that the Russians undertake.
    Now, with respect to the substance, I think basically we 
are consistent. As I have mentioned in my prepared statement, 
we have been concerned for a long time, going back into the 
early and mid--1970's about the potential ABM capability of 
Soviet air defenses. That concern was based on, as I would 
characterize today, hypothetical capability. We never saw the 
Soviet air defenses tested to intercept a strategic ballistic 
missile. So in that sense, again, the substance I believe is 
consistent, the timing may be different.
    Senator Cochran. In your opinion, do any of our TMD systems 
or the potential or planned upgrades that are being considered 
have a militarily significant ABM capability? Specifically, do 
you think that the Navy Theater Wide equipped with a 
Cooperative Engagement Capability would have militarily 
significant ABM capability that would affect compliance 
decisions?
    Dr. Stansberry. My honest answer to that is I do not know 
at the moment. The Navy has not proposed a concrete application 
of the Cooperative Engagement Capability for use with Navy 
Theater Wide so that we could assess how it actually impacts on 
ABM Treaty issues.
    Senator Cochran. What about a more powerful radar for the 
Navy Theater Wide System, would that invalidate the compliance 
judgment that was rendered earlier?
    Dr. Stansberry. The compliance judgment is based on the 
currently planned program. If the program changes we would have 
to review the compliance, so yes it would. A different radar 
would invalidate the existing compliance determination.
    Senator Cochran. And what about the ability to launch its 
interceptor missiles based on information from external 
sensors, would that change the compliance judgment for the Navy 
Theater Wide?
    Dr. Stansberry. That would also, for the same reason. They 
currently do not plan to do that and we only evaluated the 
currently planned program.
    Senator Cochran. Back to the hypothetical, you do not deal 
in hypothetical questions?
    Dr. Stansberry. Well, we have found it counter productive 
in the sense, and I am sure your legal background will be able 
to appreciate this, counter productive to try to make decisions 
in the abstract.
    Senator Cochran. Like the Supreme Court. They do not like 
to----
    Dr. Stansberry. I hesitate to compare what I do to what 
they do, but in that sense, yes.
    Senator Cochran. Well, we are all supposed to be on the 
same side anyway. But if the Navy Theater Wide was able to 
launch its missiles based solely on data from the Space and 
Missile Tracking System, we mentioned that a while ago, the 
SMTS data, would that invalidate the previous compliance 
decision?
    Dr. Stansberry. It would invalidate it. Whether it was OK 
under the treaty would depend on details that we do not have 
yet.
    Senator Cochran. I have a few more specific questions, but 
I am going to yield at this point to Senator Levin for any 
questions he might have.
    Senator Levin. Just a couple of more questions, Mr. 
Chairman.
    I want to go back to that chart. As I understand your 
testimony, 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 which 
are the words used there or mobile land-based, is that correct?
    Dr. Stansberry. That is correct.
    Senator Levin. That is Article V?
    Dr. Stansberry. That is Article V; yes, sir.
    Senator Levin. In your judgment when you looked at that 
analysis prior to Helsinki, you reached a conclusion that those 
systems were banned by the ABM Treaty, is that correct?
    Dr. Stansberry. The DOD compliance review process did not, 
it was the administration as a whole that made that judgment, 
but it was essentially what you say, that any TMD system--
space-based TMD system that actually had TMD capability--would 
also have ABM capability and, hence, be an ABM system.
    Senator Levin. Did you participate in that decision?
    Dr. Stansberry. I did not.
    Senator Levin. Did the DOD?
    Dr. Stansberry. I do not know, sir.
    Senator Levin. Would you get us, for the record, and tell 
us who was involved in reaching that?
    Dr. Stansberry. I can do that, yes.
    Senator Levin. If each party undertakes not to develop test 
or to deploy an ABM component which is space-based, is that not 
opprobrium or am I missing something here? Is it not by 
definition a violation of the ABM? Is there a way it does not 
violate the ABM Treaty to have a space-based laser or space-
based interceptor?
    Dr. Stansberry. Only if it did not have ABM capability. As 
I say, the judgment in the run up to the Helsinki summit was 
that, just as a practical matter, it was not possible to build 
a TMD laser that did not have ABM----
    Senator Levin. Space-based.
    Dr. Stansberry. Space-based, I'm sorry.
    Senator Levin. That did not have ABM capability?
    Dr. Stansberry. That is correct.
    Senator Levin. If that is correct, that status would be 
non-compliant without a demarcation agreement, is that not 
correct?
    Dr. Stansberry. That was the point that I made when I said 
I would take some exception to the chart. On that basis, it is 
not possible to make a TMD space-based system that is not also 
an ABM system. The two red question marks would be non-
compliant.
    Senator Levin. That is what I want to just clarify. Is that 
your judgment?
    Dr. Stansberry. Yes.
    Senator Levin. Other than that, do you have any 
disagreement with the chart?
    Dr. Stansberry. No, I do not think so.
    Senator Levin. In every other case it is the same with or 
without a demarcation agreement, right?
    Dr. Stansberry. Yes.
    Senator Levin. It is only in those two cases where the 
chart shows a difference and you disagree with the chart?
    Dr. Stansberry. Yes.
    Senator Levin. That is all I have. Thanks.
    Senator Cochran. Dr. Stansberry, was the ABM capability 
attributed to THAAD in 1994 deemed militarily significant? If 
not, then why did the U.S. spend millions of dollars, $3.2 as 
you said, taking the cueing capability out of that system and 
then putting it back in?
    Dr. Stansberry. Yes, Mr. Chairman, it was deemed militarily 
significant. It was deemed that it passed the threshold set up 
for Article VI(a).
    Senator Cochran. In the National Missile Defense area, on 
its face, the Treaty seems to say that any system capable of 
protecting all of the U.S., even from a limited long-range 
ballistic missile threat, is prohibited.
    How do we ever get around that in developing--or how can 
you ever decide that a National Missile Defense System is 
Treaty compliant?
    Dr. Stansberry. I think the best way to characterize it is 
as sort of open to discussion at the moment. There has been no 
need to decide at the moment whether we believe that a National 
Missile Defense System is consistent or inconsistent with it. 
The Administration has already said that if we plan to deploy a 
National Missile Defense System and if that system is 
inconsistent with the Treaty, we would move to change the 
Treaty, not the system.
    Senator Cochran. We had a meeting with our Subcommittee 
members and staff to become acquainted with what plans are 
underway for developing a National Missile Defense system and 
we learned that a request for proposals for a Lead System 
Integrator contract asked the contractors to consider a number 
of potential NMD architectures, including options to deploy x-
band radars forward of the ABM deployment area. I know that 
none of these plans are firm yet, but let's assume that meeting 
a threat from North Korea, as an example, required a forward-
based radar on the west coast of the United States. The Treaty 
defines an ABM radar as one constructed and deployed for an ABM 
role. If deployment of a forward based radar was necessary to 
complete intercepts of ICBMs, would not that radar meet the 
definition of an ABM radar in Article II?
    Dr. Stansberry. It would certainly raise questions and it 
would depend upon the detailed nature of the radar and whether 
and what its other roles might be. That is an example of the 
kind of system architecture that might require us to seek 
modification of the Treaty.
    Senator Cochran. Article III requires ABM radars to be 
located in the ABM deployment area or at test ranges. There 
again is a possible conflict with a forward-deployed radar that 
we might need, but which might not be Treaty compliant, is that 
not correct?
    Dr. Stansberry. If that forward-deployed radar were deemed 
an ABM component, it clearly would be outside the allowed 
deployment area, yes.
    Senator Cochran. What about a forward-deployed radar placed 
in South Korea or Japan?
    Dr. Stansberry. The same comment, that if it were an ABM 
radar, it would clearly be outside the deployment area. Whether 
it is an ABM radar and whether it meets the requirements for an 
ABM component would be based on answers that are not available 
at the moment simply because the details are not here.
    Senator Cochran. At this meeting in April that we had, 
General Cosumano said that if forward-based x-band radars were 
required, they will likely be less powerful versions of the 
ground-based radar, which is the NMD system's ABM radar. If 
this were the case, would not that radar be of the same type as 
the radar tested in an ABM mode and therefore an ABM radar 
under Article II's definition?
    Dr. Stansberry. Not necessarily, because the type of rules 
set out in Article II carry some implications about sort of 
being identical and if it is a similar radar, but of a smaller 
size, that may mean it is a different type. Again, we cannot 
make judgments on questions like that until we see the actual 
system design of the particular characteristics of the radar.
    Senator Cochran. The suggestions about the space-based 
components bothers me to some extent. I am going to read a 
statement made by Mr. Bob Bell in March of 1997. He is of 
course from the National Security Council staff. I am going to 
quote this from a press conference statement:
    ``When we looked at this, both as a matter of compliance 
law and as a matter of technological assessment, we determined 
that in fact it would be impossible to distinguish between an 
orbiting laser and orbiting battle station armed with kinetic 
kill missiles that one side would claim was only designed to 
intercept theater range missiles coming through space and 
somehow not have the capability to destroy strategic missiles 
going through space.''
    Are you familiar with that assessment and did you 
participate in that decision or that conclusion about the 
space-based TMD system?
    Dr. Stansberry. That is the same assessment I was 
discussing with Senator Levin as part of the run-up to 
Helsinki. I am familiar with it and no, I did not participate. 
It is the thing that leads to dispute about the two red 
question marks on the chart.
    Senator Cochran. He also said the following: ``After all, 
if you have a laser in space that has the power to burn a hole 
through the side of a missile and blow it up, it can do that 
whether the missile was an ICBM or an intermediate range 
missile. So from our perspective, there was no demarcation 
possible between space-based TMDs and space-based ABMs and we 
see this agreement as a logical corollary of the existing 
prohibition in the Treaty.''
    Is this the position of the review group on this subject?
    Dr. Stansberry. The Compliance Review Group has not 
addressed that specific question and so I do not have any 
particular position on it. I can understand that for a number 
of technical reasons it is probably easier to kill, to destroy 
strategic missiles from space than it is to destroy theater 
missiles from space. The strategic missiles get closer to the 
laser or the interceptor and hence, are just easier to destroy. 
It is on the basis of considerations like that that any TMD 
system that is space-based will probably have capability to 
destroy strategic systems as well, and hence, be a violation of 
the Article V ban on space-based ABM.
    Senator Cochran. What would be the difference then between 
that and an airborne laser? Would it not be able to burn a hole 
in a missile and kill it just as well whether it is a strategic 
missile or a theater missile?
    Dr. Stansberry. It would, depending on where the airborne 
platform is. The space-based platform for a space-based laser 
is subject to the laws of physics determining satellite orbits. 
An airborne platform is subject to some substantially different 
considerations and I think that those differences would 
probably come into play in evaluating an airborne laser 
compliance.
    Senator Cochran. But they are both prohibited in Article V. 
It is the same article prohibiting space-based systems as 
prohibits air-based systems.
    Dr. Stansberry. That is correct--space-based and air-based 
ABM; and it is important to understand the distinction here. 
The assessment prior to Helsinki was that a space-based 
interceptor or a space-based laser for TMD would likely have 
ABM capability. That is not the conclusion for an airborne 
laser. While we have not had to look at the airborne laser in 
any detail, I suspect that we can come to a different 
conclusion. The use of an airborne laser for theater missile 
defense is not necessarily an airborne laser contrary to the 
ABM Treaty.
    Senator Cochran. It sounds in conclusion that, first of all 
we have rules that we are applying against ourselves that may 
make our costs of developing theater missile defense systems, 
even if they are Treaty compliant, more expensive than they 
would otherwise be if we were not constrained by our own 
interpretations of the ABM Treaty. Is that not correct? Is that 
not borne out by the record?
    Dr. Stansberry. We have at least the one instance of THAAD 
where it has been more costly to abide by the Treaty than if 
were there no Treaty.
    Senator Cochran. My next question then is do you not agree 
that our interpretations of the ABM Treaty constrain us to the 
extent that we have no plans or proposals to deploy theater 
missile defense systems that are sophisticated enough to fully 
protect us in the case of missile attack? In other words, we 
are not preparing and not planning to deploy the systems that 
are so advanced that they guarantee us a higher state of 
security because of our own interpretation of the ABM Treaty, 
is that not correct?
    Dr. Stansberry. I do not think so, Mr. Chairman. The 
process by which we define and approve programs starts with 
requirements. The Theater Missile Defense programs that are 
currently underway have their requirements defined in that 
process. These are requirements that are not limited by the ABM 
Treaty and all of the systems that we are currently developing 
and deploying meet the requirements.
    Senator Cochran. The requirement is judged on the basis of 
the threat that you perceive exists, is that correct?
    Dr. Stansberry. That is correct.
    Senator Cochran. Well, I know that to assess the threat, we 
end up having to be in a closed session to really find out the 
details about what the emerging threats are, so we cannot get 
into that part and we do not purport to say that that is a part 
of this discussion. We are looking at our compliance review 
process and I think you have been very helpful to us in 
understanding how it works and what the standards are. It seems 
to me that the standard we have may be subject to question.
    I am going to ask you what your assessment of it is. If you 
were the only person and you did not have to develop a 
consensus, would you say that the standard that we have now is 
the best standard or the standard that we ought to have in 
place or how would you improve it if you could do that?
    Dr. Stansberry. I think the standard works as we have 
applied it. We have not limited the performance capability of 
any TMD system that we have otherwise wanted to develop and 
test. On that basis, I think the standard is working. I do not 
believe we have gone as far as we can go because there are 
additional questions about additional performance based on 
potential improvements and the chart that the staff put 
together is an example. There are potential improvements for 
the Navy Theater Wide System that raise some questions. We have 
not evaluated those questions, but I think it is fair to 
evaluate them in the context of the same compliance standards 
and practices that we have used in the past.
    Senator Cochran. Well, why then is it necessary for us to 
reach an agreement based on the Helsinki statement? All of our 
systems that we have in place now or that we have planned are 
compliant.
    Dr. Stansberry. I think there are two or three reasons. One 
is that the question marks on the chart are question marks. We 
do not know what we might want to do in the future and a 
demarcation agreement would take away the question marks. 
Another element is that it would, and I think this is a 
substantial sort of political consideration, it would remove as 
potential item of dispute between us and the Russians this area 
of the ABM Treaty. As you mentioned in your opening statement, 
the connection between the ABM Treaty and strategic offensive 
limitations with the Russians is important here, so that if we 
have an element of dispute between the Russians, it has the 
potential to undercut strategic offensive limitations, such as 
START, START II, and maybe a future START III.
    Senator Cochran. Thank you very much. Senator Levin?
    Senator Levin. Just one additional question. There has been 
long-standing differences in the Congress over the ABM Treaty 
and its value and its impact on arms control and arms reduction 
and so forth, but where I think there has been a consensus is 
on theater missile defense systems. I think all of us want to 
develop and to deploy effective TMD systems.
    Can we develop and deploy effective TMD systems and still 
comply with the ABM Treaty in your judgment?
    Dr. Stansberry. I believe so, Senator Levin. The systems 
that we have currently under development, TMD systems, have 
been designed to meet the approved TMD requirements and we can 
do that consistent with the existing ABM Treaty. Whether that 
continues to hold in the future with additional potential 
threats is as you know, a future question.
    Senator Levin. Thank you. Thank you, Mr. Chairman.
    Senator Cochran. Thank you, Senator.
    Dr. Stansberry, thank you very much for your assistance and 
your testimony today at this hearing. We will continue our 
series of hearings on subjects under the jurisdiction of this 
Subcommittee. We thank all of the staff who have worked so hard 
to help make these such a great success. The Subcommittee is 
adjourned.
    [Whereupon, at 3:44 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


                        QUESTIONS FOR THE RECORD

                             Question No. 1

            DEMARCATION STANDARD OF THE HELSINKI PRINCIPLES
    Question: At their Helsinki summit in March, Presidents Clinton and 
Yeltsin announced a set of elements for a demarcation agreement. If 
that agreement is ever codified--and in June the Standing Consultative 
Commission adjourned once again without finalizing that agreement--
would an agreement based on the Helsinki principles set an unambiguous 
demarcation standard for your use in making compliance decisions for 
higher velocity systems or for other advanced systems such as the 
airborne laser?
    Answer: The agreement for higher velocity theater missile defense 
(TMD) systems based on the elements agreed by the Presidents at 
Helsinki does not establish a definitive demarcation standard. 
Compliance assessment for higher velocity theater missile defense 
systems and other advanced systems such as the airborne laser would 
remain a national responsibility. The agreement for lower velocity TMD 
systems does establish a definitive demarcation standard.

                             Question No. 2

            CLARITY OF ``DEMONSTRATED CAPABILITY'' STANDARD
    Question: The Clinton Administration had proposed a ``demonstrated 
capability'' standard that would deem any TMD system compliant as long 
as it was not tested against a target missile exceeding 5 km/s or 3500 
range during TMD testing. Would such a standard give you the clarity 
you need to make unambiguous compliance judgments, and is this an 
adequate standard to ensure TMD systems do not have significant ABM 
capability?
    Answer: Adoption of such a standard, as agreed in the draft 
demarcation agreement on lower velocity systems, would certainly 
facilitate our compliance determinations. In the U.S. view, such a 
standard, together with various confidence building measures, would be 
adequate to ensure theater missile defense (TMD) systems do not have 
significant ABM capability, but we believe it is important that all ABM 
Treaty parties agree on such a standard. However, without the benefit 
of the ``demonstrated capability'' standard, we have already certified 
as treaty compliant all existing U.S. TMD programs that are 
sufficiently mature to allow a compliance assessment, including the 
higher velocity Navy Theater Wide system.

                             Question No. 3

             NUMBERS OF MISSILES IN COMPLIANCE CALCULATIONS
    Question: Do the actual numbers of offensive and defensive 
missiles--not types but the actual quantities--enter into your 
compliance calculations? Should these numbers be part of those 
calculations?
    Answer: The Department of Defense has not used the actual numbers 
of offensive and defensive missiles as a consideration for compliance 
assessments. We have made such assessments on the basis of estimating 
the ability of a single TMD interceptor and a single TMD radar to 
counter a single incoming strategic reentry vehicle. Using this 
approach we have been able to certify as Treaty compliant all TMD 
systems that are sufficiently mature to make evaluation possible. The 
Administration has made no determination regarding whether the use of 
the numbers of offensive and defensive missiles in a compliance 
assessment would be appropriate or how that would be done.

                             Question No. 4

              ``FORCE-ON-FORCE'' COMPLIANCE CONSIDERATIONS
    Question: In their May 10, 1995 joint Summit Statement, Presidents 
Clinton and Yeltsin declared that ``TMD systems may be deployed by each 
side . . . will not pose a realistic threat to the strategic nuclear 
force of the other side. . . .'' This suggests that your compliance 
determinations should be judged on the basis of whether a TMD system 
could negate a large scale strategic attack and not just have some 
theoretical capability against a single reentry vehicle under 
``perfect'' conditions.
     LAre such ``force-on-force'' calculations the basis for 
your compliance determinations? If not, why not?
     LHave Defense Department legal authorities issued any 
opinions on whether such a standard might be used? If so, please 
provide that opinion for the record, as well as the written request to 
the OSD General Counsel which generated this legal opinion.
     LIf so, is this legal opinion the basis for your current 
compliance standards?
    Answer:
     LNo. The Helsinki Summit principles served as the 
political basis for the demarcation agreements. The principles 
themselves have not been agreed to be legal standards for compliance. 
All of the principles, including force-on-force, served as the basis 
for negotiators in reaching agreements and will serve as the basis for 
paying increased attention to practical and realistic assessments in 
implementing the Treaty.
     LYes, one opinion. For reasons of confidentiality, we do 
not believe it would be appropriate to provide for the record the 
opinion or the written request.
     LNo.

                             Question No. 5

            ``TRIVIAL'' PORTION OF THE OTHER SIDE'S MISSILES
    Question: The unclassified section of the October 31, 1996, Report 
to Congress on ABM Treaty Compliance Certifications of Theater Missile 
Defense Systems states: ``A non- ABM system under consideration would 
only be inconsistent with the obligations if it had capabilities to 
counter strategic ballistic missiles of types that comprise more than a 
trivial portion of the other side's strategic ballistic missiles 
reasonably projected to be in existence when the system is to be 
deployed.''
     LHow is the term ``trivial'' defined? Is this a legal 
definition, or one based on assessments of militarily relevant 
capabilities? How is ``non-trivial'' different from ``militarily 
significant''?
     LThis report refers to capability against ``types'' of 
strategic ballistic missiles, not numbers of missiles.
           LThis logic implies that if a TMD system were 
determined to have some limited theoretical capability to intercept 
strategic missiles--for example, the same capability THAAD was 
determined to have in 1994--and the other side had only one type of 
ballistic missile, then that TMD system would be deemed to have 
capability against 100% of the opposing side's strategic ballistic 
missile force. Is this what is implied by the report?
           LSince the number of actual missiles is not 
considered in compliance determinations, if the United States had only 
one of the type of TMD interceptor in the above example, and the other 
side had 10,000 of their one type of strategic missile, would the TMD 
system then be deemed to have capability to counter the other side's 
entire force?
    Answer:
     LIn this case, trivial is meant to have its ordinary 
meaning (e.g., of little significance) and has no special legal 
significance. It has not been specifically quantified. In considering 
THAAD compliance in 1994, it was noted that certain Russian strategic 
ballistic missiles, which are relatively easy to counter, comprise 
approximately one and one-half percent of the projected Russian 
strategic force. This was characterized as a trivial portion of that 
force. No effort was made to relate ``non-trivial'' and ``military 
significance.''
     LNo. What is meant is that one TMD interceptor and radar 
would have capability against one of that type of ballistic missile 
(i.e., one reentry vehicle).
     LNo, for the reasons provided above.

                             Question No. 6

                       FORWARD-BASED X-BAND RADAR
    Question: You stated in your testimony that whether a forward-based 
radar for use in national missile defense was an ABM radar ``would 
depend upon the detailed nature of the radar and whether and what its 
other roles might be.'' Please explain how ``other roles'' served by a 
forward-based X-band radar which was constructed and deployed 
explicitly as part of the NMD architecture could prevent it from being 
deemed an ABM radar in accordance with the definition of that term 
contained in Article II of the ABM Treaty.
    Answer: We have not found it useful or appropriate to try to 
address treaty compliance questions in the abstract, but rather we 
address them in the context of information about specific and detailed 
plans. Questions regarding the use of a forward-based radar for 
national missile defense and other purposes fall into this category.

                             Question No. 7

          THRESHOLD FOR MILITARILY SIGNIFICANT ABM CAPABILITY
    Question: Your written testimony contains a statement regarding 
``military significance'' but it quotes a passage from a 1986 report to 
Congress on Soviet compliance, not U.S. compliance. ``Military 
significance'' is part of U.S. evaluation of Russian TMD systems, but 
is it, and has it been since 1993, an explicit part of the Compliance 
Review Group's assessment of U.S. TMD systems? If so, how is ``military 
significance'' quantified? What is the threshold above which TMD 
systems are deemed to have militarily significant ABM capabilities?
    Answer: Military significance is taken into account in compliance 
assessments of both U.S. and Russian TMD systems. However, the term 
``military significance'' is not explicitly defined; it has not been 
applied as a standard for compliance, and there is no defined 
``threshold.'' Rather, it is taken into account inasmuch as military 
considerations, such as the nature of the opposing strategic ballistic 
missiles and the simulated, hypothetical capability of the TMD system 
against those missiles, are considered in compliance determinations. 
Judgments about compliance are made on a case-by-case basis in light of 
the particular circumstance of each case.

                             Question No. 8

    JOINT STAFF ASSESSMENT OF MILITARILY SIGNIFICANT ABM CAPABILITY
    Question: According to a briefing presented to subcommittee staff 
on June 23, 1997, by officials of the Arms Control and Disarmament 
Agency, the Joint Staff is responsible for determining whether Russian 
TMD systems have militarily significant ABM capability. When was the 
last time the Joint Staff made such an assessment? Does it also make 
these assessments for U.S. systems? If not, does the CRG use the same 
analytical model the Joint Staff employs?
    Answer: The Joint Staff participates fully in the interagency 
assessments of Russian TMD systems as well as DOD assessments of U.S. 
TMD systems, providing military advice for both. Rather than making 
assessments of ``military significance'' per se, the Joint Staff 
provides its views on military considerations such as the nature of the 
opposing strategic ballistic missiles and the capability of the TMD 
systems against those missiles. Neither the Joint Staff nor the DOD 
Compliance Review Group has adopted an ``analytical model'' 
specifically for evaluation of ``military significance.''

                             Question No. 9

            MILITARY SIGNIFICANCE OF THAAD'S ABM CAPABILITY
    Question: You stated in your testimony that, in 1994, THAAD's 
theoretical ABM capability was deemed ``militarily significant.'' That 
statement directly contradicts what was reported to Congress in the 
January 1994 report on THAAD compliance, as well as a response for the 
record from BMDO Director O'Neill in testimony before the SASC on May 
11, 1994, in which be stated, ``This `theoretical' ABM capability, 
however, would not be militarily significant in light of system 
limitations and operational considerations. That is, in real-world 
scenarios, THAAD could not perform its defensive mission against 
strategic-class missiles, even in limited engagements. . . . In sum, 
THAAD simply would not suffice as an ABM system; it would be easily 
overwhelmed by the Russian strategic missile force.'' Does your 
testimony change the Administration's position as previously reported 
to Congress, or was your testimony incorrect?
    Answer: My response to the Chairman's question on this point was 
incorrect. What 1 should have said was that military significance was 
taken into account in the evaluation of THAAD. As noted above, the term 
``military significance'' is not defined and has not been applied, as 
such, as a standard for compliance.

                            Question No. 10

          ONE-ON-ONE ANALYSIS TO MEASURE MILITARY SIGNIFICANCE
    Question: Your testimony states that you assess the ``military 
significance'' of U.S. TMD systems on the basis of ``the simulated, 
hypothetical performance of a single TMD interceptor missile and radar 
to intercept a single reentry vehicle from certain Russian [strategic 
missiles].'' But according to General O'Neill's testimony, the THAAD 
system was declared non-compliant using this measure even though it had 
no militarily significant operational capability. Given his testimony, 
how can the one-on-one analysis you described be considered a measure 
of military significance?
    Answer: As noted above, military significance is taken into account 
in compliance assessments. However, ``military significance'' is not 
explicitly defined and has not been applied as a standard for 
compliance. Rather, military significance is taken into account 
inasmuch as military factors such as the nature of the opposing 
ballistic missiles and the capability of the TMD system against those 
missiles are considered in compliance determinations. The conclusion 
that General O'Neill described in his testimony resulted from including 
certain operational considerations, such as numbers and locations of 
deployments, that went beyond the one-on-one analysis used in the 
compliance assessment for THAAD. Subsequent to General O'Neill's 
testimony, and using our current approach, THAAD was determined to 
comply with the ABM Treaty.

                            Question No. 11

         ``MILITARY SIGNIFICANCE'' AS A STANDARD FOR COMPLIANCE
    Question: Since THAAD's capability was deemed not militarily 
significant in 1994, but THAAD was still determined to be non-
compliant, how is it possible to state that ``military significance'' 
is the standard by which the CRG judges the compliance of U.S. systems?
    Answer: As noted above, ``military significance'' has not been used 
as a standard for judging compliance of U.S. systems.

                            Question No. 12

         ``MILITARY SIGNIFICANCE'' AS A STANDARD FOR COMPLIANCE
    Question: You stated in your testimony that you do not take into 
account operational factors of TMD systems in making compliance 
assessments. On what basis did you state that ``military significance'' 
is a compliance standard if operational military factors are not 
considered?
    Answer: As noted above, ``military significance'' has not been used 
as a standard for judging compliance of U.S. systems.

                            Question No. 13

                          JOINT STAFF CONCERNS
    Question: You stated that all compliance determinations have been 
consensus decisions which included the concurrence of the Joint Staff. 
Has the Joint Staff made known to you any concerns on its part that 
current compliance methodologies, assumptions, or standards are 
inadequate and should be replaced with ones that better measure the 
true military significance of the capability of TMD systems? If so, 
what are the nature of those concerns?
    Answer: The Department of Defense will continue to ensure that DOD 
programs fully comply with all treaty obligations, but it also will 
continue to refine compliance methodologies and assumptions to ensure 
that these programs are not unnecessarily constrained. Our compliance 
methodology has evolved to incorporate additional relevant 
considerations. The Joint Staff has participated fully and 
constructively in this process.

                            Question No. 14

      ONE-ON-ONE ENGAGEMENTS AS A MEASURE OF MILITARY SIGNIFICANCE
    Question: Please explain how the ``simulated, hypothetical one-on-
one engagements'' you mentioned in your testimony represent a 
reasonable operational scenario from which a true measure of military 
significance can be derived?
    Answer: As noted above, our one-on-one compliance methodology has 
not taken all operational considerations into account, and no claim is 
made that a ``true measure of military significance'' has been derived.

                            Question No. 15

                   NEGOTIATED OR UNILATERAL STANDARD
    Question: Is the current standard by which TMD programs are judged 
for ABM Treaty compliance the result of a negotiated agreement with 
Russia or the U.S.S.R., or was the standard determined unilaterally by 
the United States?
    Answer: Compliance judgments, which are derived from the provisions 
of the Treaty, have been made unilaterally on a case-by-case basis 
rather than on the basis of a particular standard for compliance. The 
methodologies used thus far to evaluate TMD systems for compliance are 
not the result of negotiated agreement.

                            Question No. 16

                     ASSESSMENT OF SPACE-BASED TMD
    Question: Robert Bell of the National Security Council Staff has 
stated that prior to the Helsinki summit, the administration examined 
space-based lasers and- interceptors ``as a matter of compliance law 
and technological assessment.'' Presumably the compliance expertise for 
this assessment would come from the executive branch agency responsible 
for making compliance judgments on U.S. systems, which by Defense 
Department directive is the DOD Compliance Review Group, with 
technological assessments from the missile defense experts in the 
Ballistic Missile Defense Organization. Yet you stated in your 
testimony that the CRG was not involved in this assessment and that 
you, as chairman of the CRG, did not know if the Defense Department was 
involved in the determination. Please provide the subcommittee the 
technological and ``compliance law'' assessments that formed the basis 
for this decision, as well as a list of the participants in those 
assessments.
    Answer: The USG decision to agree at the Helsinki Summit to 
prohibit space-based TMD interceptor missiles and components based on 
other physical principles that are capable of substituting for such 
interceptor missiles was made, like other decisions on the 
negotiations, through the interagency process, in which all relevant 
agencies, including DOD (both OSD and the Joint Staff) participated at 
senior levels. Issues concerning space-based TMD systems, including 
technical and legal considerations, were discussed in appropriate 
detail during interagency deliberations, although no formal (i.e., 
written) technological or ``compliance law'' assessments were prepared. 
The Administration concluded that, as a practical matter, no 
demarcation between space-based ABM and space-based TMD systems was 
feasible. The USG has maintained the position that it could accept a 
ban on space-based TMD interceptor missiles since Spring of 1994.

                            Question No. 17

                 COMPLIANCE OF SPACE-BASED TMD SYSTEMS
    Question: You stated in your testimony that you could not speculate 
on whether certain specific capabilities--for example, an upgraded 
Aegis radar, Navy Theater Wide aided by Cooperative Engagement 
Capability or launch on composite data, and forward-based X-band NMD 
radars--would be compliant because ``there are no well-defined programs 
. . . that would allow us to assess the compliance'' and because the 
capabilities ``are just simply too immature to understand the 
performance of the system.'' Yet you said in your testimony that it was 
your judgment that ``it's not possible to make a TMD space-based system 
that isn't also an ABM system,'' even though you had not participated 
in and were not privy to the analysis that led to this conclusion. 
Please explain how you can be certain that an undefined space-based TMD 
capability would necessarily be non-compliant when, according to your 
own testimony, any other definitive compliance determination requires 
``mature'' and ``well-defined'' programs?
    Answer: I did not mean to imply in my testimony that it was my 
judgment that an undefined space-based TMD capability would necessarily 
be non-compliant. Rather, I was attempting to explain the 
Administration's conclusion that, as a practical matter, no demarcation 
between space-based ABM and space-based TMD systems was feasible. That 
conclusion was not reached in the context of a compliance review of 
specific and detailed program plans, which are required for DOD 
compliance determinations.

                            Question No. 18

            COMPLIANCE CONSIDERATIONS FOR AIRBORNE LASER TMD
    Question: You stated the following in your testimony: that Article 
V of the ABM Treaty prohibits space-based ABM components and thus would 
also prohibit space-based TMD components which had ABM capability; that 
U.S. compliance assessments are made on the basis of ``simulated, 
hypothetical performance'' in one-on-one engagements; and that 
``operational factors including basing modes, the number of launch 
platforms and missiles, the location of TMD systems and the character 
of a likely strategic attack'' were not part of your compliance 
evaluations. Yet you also stated that whether an airborne laser is 
compliant might depend ``on where the airborne platform is'' and that 
such a system would be ``subject to some substantially different 
considerations.'' If the locations of TMD systems are not considered in 
your compliance determinations, why would ``where the airborne platform 
is'' matter in a compliance determination for the airborne laser? On 
what basis would ``different considerations'' be introduced for the 
airborne laser, what would they be, and why wouldn't the same 
considerations be used for determining compliance of all TMD systems?
    Answer: In my testimony, I was speculating in response to a 
general, hypothetical question from the chairman, so my response should 
not be taken as a considered compliance assessment. With respect to the 
particular question, however, since we evaluate Th4D compliance on a 
case-by-case basis taking into account detailed characteristics of each 
system, the considerations relevant to compliance for an airborne laser 
would likely be different from those for systems with ground-based 
interceptors. These considerations would be evaluated when the system 
design is appropriately mature.

                            Question No. 19

                    SPACE-BASED AND AIRBORNE LASERS
    Question: Article V of the ABM Treaty bans both space-based and 
air-based ABM systems, and you testified that a space-based TMD laser 
would ``have capability to destroy strategic systems as well, and 
hence, be a violation of the Article V ban on space-based ABM.'' Please 
explain why the capability of a laser to, in the words of Robert Bell, 
``bum a hole through the side of a missile and blow it up,'' is 
sufficient to deem a space-based laser non-compliant but is not 
sufficient to make the same determination for an airborne laser.
    Answer: The Administration concluded that, as a practical matter, 
no demarcation between space-based ABM and space-based TMD systems was 
feasible. Neither DOD nor the Administration as a whole has addressed 
the compliance question for the TMD airborne laser, and DOD has no plan 
to do so until the program is sufficiently well defined.

                            Question No. 20

                     ARTICLE BY LAWRENCE GOLDMUNTZ
    Question: Did the analysis you said preceded the Helsinki agreement 
to ban space- based TMD consider contrary analysis which argues that 
space-based-TMD systems could be deployed without having ABM 
capability, such as that contained in Dr. Lawrence Goldmuntz's article 
``Poor Man's MRVs and Space Defense,'' in the Fall 1996 Strategic 
Review? If so, on what basis were these arguments rejected?
    Answer: Arguments such as those in the article by Dr. Goldmuntz 
were considered, but were not accepted. The USG has maintained the 
position that it could accept a ban on space- based TMD interceptor 
missiles since Spring of 1994.

                            Question No. 21

                          INTERAGENCY LAWYERS
    Question: You stated in your testimony that DOD has sole 
responsibility for making compliance determinations and DOD Directive 
2060.1 confirms this. To what extent have lawyers from other executive 
agencies had a significant role in past compliance decisions? Do they 
have an official role and, if so, what is it and where is it prescribed 
in regulation or other administration policy statement? Has an 
interagency lawyers' group always been involved in these decisions to 
the extent it has since 1993? Who decides when to involve the 
interagency lawyers' group and based on what criteria?
    Answer: As a general rule, lawyers from the other agencies do not 
get involved in DOD compliance assessments. Sometimes, however, the 
interagency legal community is consulted. The Department has the 
obligation to ensure that its activities comply with arms control 
agreements and takes that obligation very seriously. Accordingly, when 
certain significant issues of treaty interpretation have arisen, the 
office of the DOD General Counsel has consulted the interagency legal 
community in order to ensure that we proceed under correct treaty 
interpretations and that our activities will remain in compliance. 
Decisions to consult are made on a case-by-case basis by the Office of 
the DOD General Counsel, generally in consultation with representatives 
of the other offices represented in the Compliance Review Group. 
Interagency consultations have become more frequent in the 1990s as the 
issues have become more complex.

                            Question No. 22

                     RUSSIAN COMPLAINT ABOUT THAAD
    Question: Have the Russians ever charged that THAAD was not 
compliant with the ABM Treaty?
    Answer: No.

                            Question No. 23

                       RUSSIAN COMPLIANCE REVIEW
    Question: Has the United States ever briefed or otherwise informed 
Russia of the results of its compliance decisions? Has Russia ever 
shared with the United -States any information on its compliance review 
process or the results of its reviews?
    Answer: The United States has informed Russia of the results of 
certain compliance decisions. For example, during discussions in the 
Standing Consultative Commission we have briefly discussed thel996 
decision on the THAAD system's compliance, and addressed the U.S. 
compliance process and the 1995 compliance report on the Navy Theater 
Wide system. There have been no instances of Russia providing 
comparable information to the United States regarding its compliance 
review process or the results of its reviews.

                            Question No. 24

                        INCREASED COST OF THAAD
    Question: The October 31, 1996 Report to Congress on ABM Treaty 
Compliance Certifications of Theater Missile Defense Systems stated 
that the ``current estimate'' of the increased cost of the THAAD system 
due to the decision to withhold, and then reinstate, cueing software, 
was $3.4 million. This figure differs somewhat from the amount you 
cited in your testimony. What are the current and estimated final 
amounts-spent by the United States to keep THAAD from having a 
capability which was later determined to be compliant?
    Answer: The number I quoted, $3.2M, was incorrect. The number that 
was reported in the October 31, 1996, Report to Congress is the correct 
number--$3.4M.

                            Question No. 25

           REASONS FOR CHANGE IN THAAD COMPLIANCE ASSESSMENT
    Question: Was the change in THAAD's compliance status between 1994 
and 1996 due primarily to improved knowledge of the actual (vs. 
intended) technical capabilities gained through the demonstration/
validation test program, or to changes in the assumptions used to make 
the compliance assessment?
    Answer: As I noted in my testimony, the changes to THAAD were of a 
programmatic nature (i.e., related to system design). I also stated 
that the capabilities assumed for THAAD in early compliance 
deliberations were revised based on a better understanding of the THAAD 
performance when the CRG conducted its review of the program in 1996. 
When the CRG conducted the 1996 review, nothing had changed regarding 
our approach to determining ABM Treaty compliance. What did change was 
our understanding of the capabilities of THAAD as the system had 
matured and preliminary conservative performance assumptions were 
replaced by more accurate information.



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